156 N.Y. 376, Van Ingen v. Mail & Express Pub. Co.

Citation156 N.Y. 376
Party NameEDWARD H. VAN INGEN, Respondent, v. THE MAIL AND EXPRESS PUBLISHING COMPANY, Appellant.
Case DateJune 07, 1898
CourtNew York Court of Appeals

Page 376

156 N.Y. 376

EDWARD H. VAN INGEN, Respondent,

v.

THE MAIL AND EXPRESS PUBLISHING COMPANY, Appellant.

New York Court of Appeal

June 7, 1898

Argued May 13, 1898.

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COUNSEL

William Irwin and A. L. Pincoffs for appellant. The court erred in denying the motions to dismiss the complaint and to direct a verdict for the defendant. Both these motions were based upon the following grounds: First, that the article complained of is not libelous as against the plaintiff, and, second, he is not indicated in the article. (Townshend on Slander & Libel [4th ed.], 629, 630; People v. Parr, 25 Wkly. Dig. 113; James v. Rutlich, 4 Coke, 17; Hawk Pl. Cr. Ch. 79, § 9; Tyler v. Tillotson, 2 Hill, 507; Fleischmann v. Bennett, 87 N.Y. 231; Miller v. Maxwell, 16 Wend. 16; Sumner v. Buel, 12 Johns. 475; 13 Am. & Eng. Ency. of Law, 434, 437; Woodruff v. Bradstreet Co., 116 N.Y. 217.) The court erred in admitting in evidence copies of the Morning Advertiser, of the New York Recorder and of the New York Press of the date respectively of November 7, 1892, and this error was not cured by the direction of the

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court that the jury was not to consider these articles in determining the questions as to whom the article complained of referred to. (2 C. & P. 307; Miller v. Maxwell, 16 Wend. 14, 16; Odgers on Libel & Slander [Black. ed.], 235.)The court erred in permitting the plaintiff to testify as to what the lord chief justice of England said regarding the publication in the settlement of the action brought in the Court of Queen's Bench in England. (1 Greenl. on Ev. [ 14th ed.] § § 82, 514; Blair v. Flack, 67 Hun, 648; 50 N.Y. S. R. 480; 141 N.Y. 53, 57; Weymouth v. Broadway S. A. R. R. Co., 2 Misc. Rep. 506; Tousley v. Barry, 16 N.Y. 500; Truax v. Slater, 86 N.Y. 632; Bush v. Roberts, 111 N.Y. 278; Luby v. H. R. R. R. Co., 17 N.Y. 131; Cortland Co. v. Herkimer Co., 44 N.Y. 22; Clapper v. Town of Waterford, 131 N.Y. 382, 390; Murphy v. Marscheider, 4 N.Y. Supp. 799; Pringle v. Woolworth, 90 N.Y. 502.) The court erred in admitting the testimony of the plaintiff as to the final order of the English court. (Momeyer v. N. J. S. & W. Co., 20 N.Y.S. 814; Kain v. Larkin, 131 N.Y. 300; Kearney v. Mayor, etc., 92 N.Y. 621; Simpson v. Dall, 3 Wall. 475; Wheeler v. Britton, 17 N.Y.S. 749; 137 N.Y. 628.) The court erred in permitting the plaintiff to testify that there was no other person than the plaintiff who is the London head of a New York firm of cloth jobbers. (Gutterman v. Liverpool, etc., S. Co., 83 N.Y. 359; Reynolds v. Robinson, 64 N.Y. 595; Link v. Sheldon, 136 N.Y. 9; Matter of Snelling, 136 N.Y. 518.) The court erred in admitting testimony as to what cable was referred to in the article, this being immaterial. (Best's Principles of Evi. §§ 229-249; Malcomson v. Clayton, 13 Moore P. C. C. 18; Hinman v. Hare, 5 N.Y. S. R. 510.) The court erred in permitting the witness Willis to testify as to what he knew about the plaintiff. (Greenl. on Evi. [ 14th ed.] § 51a.) The court erred in admitting the testimony of the witnesses David T. Leahy, a partner, and Walter H. Sykes, an employee of the plaintiff. (Townshend on Slander & Libel [4th ed.],

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§ 384; Smart v. Blanchard, 42 N.H. 137; Barton v. Holmes, 16 Iowa, 252; Smith v. Myles, 15 Vt. 245; Wright v. Paige, 36 Barb. 438; Snell v. Snow, 13 Metc. 278; Harrison v. Berrington, 8 Carr. & P. 137.)The court erred in leaving it to the jury to determine whether the article published by the defendant referred to or indicated the plaintiff, and also in charging in effect that the words contained in the defendant's articles are libelous as matters of law, provided the jury find they refer to the plaintiff. (Miller v. Maxwell, 16 Wend. 9; Townshend on Slander & Libel [[4th ed.], 629, 630; People v. Parr, 25 N.Y. Wkly. Dig. 113; Hawk Pl. Cr. ch. 79, § 9; Fleischmann v. Bennett, 87 N.Y. 231.) The court erred in refusing to charge that unless the defendant was known on and prior to November 7, 1892, as the London head of a large New York firm of cloth jobbers, the verdict must be for the defendant, and that there is no evidence that the plaintiff was, on or prior to November 7, 1892, known as the London head of a large New York firm of cloth jobbers. (Townshend on Slander & Libel [4th ed.], § 375a; Miller v. Maxwell, 16 Wend. 16.) The court erred in refusing to charge that 'there is evidence that the plaintiff was not known as 'the London head of a large New York firm of cloth jobbers' prior to the publication of the alleged libel on November 7, 1892, ' and that 'it is necessary for the plaintiff to prove to the satisfaction of the jury that the plaintiff was known as 'the London head of a large New York firm of cloth jobbers' before they can find a verdict for the plaintiff.' (Townshend on Slander & Libel [4th ed.], § § 131, 375a; Miller v. Maxwell, 16 Wend. 16, 17.) The court erred in refusing to charge that it was necessary for the plaintiff to prove to the satisfaction of the jury that the plaintiff was the London head of a large New York firm of cloth jobbers before they can find a verdict for the plaintiff, and in charging in lieu thereof that it was necessary for the plaintiff to prove simply that he was 'a London head of a large New York firm of cloth jobbers, ' etc. (Townshend on Slander & Libel [4th ed.], § 140; Daines v. Hartley, 3 Ex. 200; Hayes v. Ball, 72 N.Y. 420;

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Phillips v. Barber, 7 Wend. 439; Mayor, etc., v. Lord, 17 Wend. 296.)The court erred in refusing to charge the 7th and 8th written requests of the defendant, which were: 'Seventh. That the publication of other similar articles in other papers immediately prior to the publication of the article complained of is a matter the jury must consider in mitigation of damages.' 'Eighth. That the fact that the same matter, substantially, was published extensively in the morning papers of the same day, is to be considered by the jury in mitigation of damages.' (Creevy v. Carr, 7 Carr. & P. 64; Lewis v. Walter, 4 Barn. & Ald. 605; Saunders v. Mills, 6 Bing. 213; Skinner v. Powers, 1 Wend. 451; Lothrop...

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