#### William F. G. Shanks, Plaintiff, *v.*Anthony Stumpf et al., Defendants.

(Supreme Court, Kings Trial Term,

April, 1898.)

1. Libel — Charging aú editor with, threatening dealers in bonds — ■ Malice — 3?unitive damages. - '

An article; shown by extrinsic evidence to have "been published of the 'plaintiff, the editor and manager of a newspaper designed to inform investors in regard to municipal bonds, which, in substance, charges that the editor uses his newspaper to threaten, dog, spite and ' persecute dealers in bonds who refuse to patronize his newspaper, that he also uses.it to cry.down the bonds -which these dealers pur-, chase and, which Stigmatizes his practices as “ utterly indefensible, infringing upon, if not crossing the line of downright criminality ”, is . libelous *per se,*as matter of law; and,'.in the absence of proof of motive, justifies a recovery of punitive damages. '

¡3. Same — An answer not alleging that the libel is true of the .plaintiff — Mitigation.

An answer, which, after denying that an 'article was published' of the plaintiff, states that “ the facts forming the foundation of said alleged libel were received by the defendant in the ordinary course of. business ”, that they Were published ■“ in the honest belief that said *265facts were true, and without any malice or evil design' whatsoever, and defendants aver that thé aforesaid article is true,” does not sufficiently allege -that it is true of the plaintiff and the answer is insufficient to mitigate damages.

Action for libel. Motion on the minntes to set aside a verdict of $5,00(1

Sanders Shanks, for plaintiff.

James W. Ridgway, for defendants.

Gaynor J.:

The libelous publication is a severe stricture upon some unnamed individual.- That the plaintiff was meant by it had to be proved by evidence *de hors.*The (answer denies that it was published of and concerning him. The- answer then states, “ that the facts forming the foundation of said alleged libel were received by the defendants in the ordinary course of business ”, that they “were examined into and verified before publication”, and that they were then published by the defendants “ in the honest belief that said facts were true, and without any malice or evil design whatsoever, and defendants avér that the aforesaid article is true.” This is no allegation that the article is true of the plaintiff. On the contrary, the answer denies that it was published of and concerning him. But if understood as an allegation that it is true of the plaintiff, it is not a -good answer of the truth either as a defense, or as a partial • defense, viz., in mitigation of damages; nor is it in terms so pleaded, as is required (Code Civ. Pro. -secs. 507-8). What the “facts forming the foundation of said alleged libel ”, and which the answer says “ were examined into and verified before publication ”, are, is not specified. Such defenses must set forth the particular facts which show the libelous statements! to be true. A mere general averment of the truth of the libel does not amount to either defense, unless in a case where the libel itself consists of a spedific statement of the facts (Wachter v. Quenzer, 29 N. Y. 547; Lanpher v. Clark, 149 N. Y. 472; McKane v. Brooklyn Citizen, 53 Hun, 132; Kingsley v. Kingsley, 79 Hun, 569). It follows that the evidence offered by defendant to prove the truth of the libel was properly excluded.

The charge that if the libelous publication was made maliciously, the jury could give smart money damages therefor, was correct. The -libel itself was competent evidence of such malice, and the *266defendants did not become witnesses themselves, or offer any evidence of their motive, or of how they name to publish it. And the charge .'that if the ■ jury ■ found that the publication was made in wanton or reckless disregard of the rights of the plaintiff, or of others generally, such, malice- could be found therefrom alohe, .was ■also correct (Holmes v. Jones, 121 N. Y. 461; Prince v. Brooklyn Eagle, 16 Misc. Rep. 186; Ullrich v. New York Press Co., 23 Misc. Rep. 168).

. The portions of the publication .which the- court specifically mentioned in charging the jury that the publication was libelous *per .se,*and entitled the plaintiff to a verdict if the jury found that it was published of and concerning him, are the following:

“ The arrogance and infallibility which spring from, monopoly had become a source of great irritation to the public, which the original publication was intended to serve, and in course of time lead the management of that newspaper-to degenerate into practices - utterly indefensible,. ‘infringing upon, if not actually-crossing,'the line of downright criminality; and t-hej unquestioned utility of the service, if properly performed, enabled the publication to which we allude to adopt a despotic attitude toward the' whóle-bond-dealing fraternity, interfering with-the business of individual houses, dog-' ing their managers with half-veiled threats-.of prosecution in its pages,' and exercising a general terrorism, from which there did not appear to be any feasible avenue of escape.”

“ Some time ago the city of Oamden, N. J., made a private sale of bonds, as the law permitted, it being optional on the part of the proper authorities to take such method of selling the bonds or canvassing them publicly, It appears that the purchaser of these ' bonds, had refused to do any further business with the proprietor. of the news sheet, upon whose- methods he now sits in judgment, ■ and to spite the bond dealers, he then began to assail the credit, of the city which had sold the. securities.” -

“This assertion of exclusive control over the sources.of news is adopted only to reinforce the importance of his sheet to- bond dealers, when the latter refused to be. coerced into- subscribing.u-r advertising under the threat of being.publicly scourged.”

The plaintiff was the editor and manager of a newspaper devoted to the giving of information - concerning municipal bonds .to. in- ' vestors, and .the libel concerned his conduct in that capacity. These . extracts show its tenor, which amounted to a charge that the plain- ■ tiff used the said newspaper and his said control of it to threaten,*267dog, spite and persecute dealers in bonds wbo refused to subscribe for or advertise in bis said newspaper, and to cry down the bonds they purchased, bis practices being “ utterly indefensible, infringing upon, if not actually crossing the line of downright criminality.” There being no ambiguity about the' words, it is always a question of law for the court whether they are libelous (Moore v. Francis, 121 N. Y. 199). The words here are certainly very derogatory to the plaintiff. They impute to.him dishonest, dishonorable, immoral and degrading conduct, and that constitutes a libel (Odgers, ch. 2, part 1).

I think as such verdicts go that this verdict is too high, and it will therefore be set aside unless the plaintiff stipulate to reduce it to $1,500. - '

Ordered accordingly.