Cheatum v. Wehle

• Decision Date: 01 August 1961
• Citation: 14 A.D.2d 641,218 N.Y.S.2d 284
• Parties: E. Leonard CHEATUM, Respondent, v. Louis A. WEHLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 284

218 N.Y.S.2d 284

14 A.D.2d 641

E. Leonard CHEATUM, Respondent, v. Louis A. WEHLE, Appellant.

Supreme Court, Appellate Division, Third Department.

Aug. 1, 1961.

Costello, Cooney & Fearon, George R. Fearon, Syracuse, for appellant.

Byrne, Casey & Keenan, Albany, for respondent (John W. Tabner, Albany, of counsel).

Before BERGEN, P. J., and GIBSON, HERLIHY, REYNOLDS and TAYLOR, JJ.

MEMORANDUM DECISION.

In this action in slander, at Supreme Court, Albany County, the jury returned a verdict in favor of the plaintiff-respondent and against the defendant-appellant in the sum of $75,000 consisting of $15,000 compensatory damages and $60,000 for punitive damages. In our view the verdict, on this record, is excessive and the compensatory damages should not exceed $5,000 the punitive damages $32,500.

Judgment reversed on the law and the facts and a new trial ordered unless the plaintiff-respondent shall stipulate within ten days of the service of an order with notice of entry, to accept the sum of $37,500 in which event the judgment as modified is affirmed. No costs. Settle order. BERGAN, P. J., and GIBSON, REYNOLDS and TAYLOR, JJ., concur.

HERLIHY, J., concurs in part and dissents in part, in a memorandum.

HERLIHY, Justice.

As to the reduction of compensatory damages, I acquiesce in the decision of the majority, dubitante on the question of excessiveness.

As to the reduction of compensatory damages, I acquiesce in the cessiveness. Concededly the amount is high but so was the position occupied by the defendant and appointed thereto by the Governor of this State. The theory and purpose of punitive damages are such that we cannot, under the present circumstances, mandate that the amount awarded was excessive as a matter of law. That such is the rule was most recently enunciated by the Court of Appeals in Toomey v. Farley, 2 N.Y.2d 71, 156 N.Y.S.2d 840 (modified on other grounds) where the defendant as to punitive damages argued that the amount, after being reduced by the Appellate Division, was excessive and unauthorized in law based upon the theory that the award of punitive damages was insupportable as the jury, by awarding nominal compensatory damages, determined the plaintiff suffered no actual damages. The court said at pages 83-84 of 2 N.Y.2d, at page 849 of 156 N.Y.S.2d:

'The doctrine advanced by the defendants would nullify one of the underlying objectives of punitive damages and has consistently been rejected by New York and federal authorities, although recognized in a few states. * * * Punitive or exemplary damages are intended to act as a deterrent upon the libelor so that he will not...