Cohalan v. New York Press Co.

• Decision Date: 14 July 1914
• Citation: 212 N.Y. 344,106 N.E. 115
• Parties: COHALAN v. NEW YORK PRESS CO., Limited.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 344

106 N.E. 115

COHALAN

v.NEW YORK PRESS CO., Limited.

Court of Appeals of New York.

July 14, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John P. Cohalan against the New York Press Company, Limited. From a judgment of the Appellate Division (148 App. Div. 89, 132 N. Y. S. 1101), affirming, by a divided court, a judgment for plaintiff, defendant appeals. Affirmed.

Philip Carpenter, of New York City, for appellant.

Almeth W. Hoff, of New York City, for respondent.

PER CURIAM.

[1] At the Trial Term the plaintiff recovered a verdict of $10,000 damages for the publication of a newspaper libel in derogation of his character and motives as a public officer. The judgment entered upon the verdict was affirmed, by a divided court, at the Appellate Division. We think the result is right, and we would affirm on this appeal without opinion, but for some expressions in the prevailing opinion below to which we cannot subscribe.

At the Appellate Division and in this court the learned counsel for the defendant argued that the trial court had committed error in declining to charge a request relating to the question of malice, and affecting the rule of damages. The case being one in which the jury had the right to award punitive damages if the libel was found to be malicious, it is obviously important that there should be no uncertainty in the statement of law applicable to that question. Upon that subject the prevailing opinion below expressed a view that might lead to confusion if permitted to go uncorrected. It is to the effect that, even though there was error in the charge on the question of punitive damages, the judgment may be affirmed because the verdict was not so large as to indicate that it included punitive damages. We cannot concur in this view. If carried to its logical conclusion, it would authorize an appellate court to overlook any error in a charge on the subject of punitive damages in a case of libel, whenever the verdict happens to be so moderate that it apparently includes no punitive damages. Neither the Appellate Division nor this court has any such plenary power. The judgment was properly sustained, however, for reasons which may be briefly stated.

[2] The particular request to charge, upon which the counselfor the appellant bases his argument for a reversal of the judgment, is that:

‘In order to justify the jury in awarding a sum beyond mere compensation, the plaintiff must establish the fact of actual malice, and must do so by a fair preponderance of evidence.’

This request embodies the correct rule of law, and, if it stood alone, the refusal to charge it would be error, for which the judgment would have to be reversed. But the charge must be considered in its entirety and in its relation to the facts proved. The article, of which the plaintiff complained, was plainly libelous per se, although the trial court permitted by the jury to determine its character. It was defamatory and it was false. The...