#### Sarah M. Warner, Respondent, *against*The Press Publishing Company, Appellant.

(Decided February 3d, 1890.)

In an action for libel in publishing in a newspaper what purported to be an account of a proceeding in a police court, the question of the actual truth or falsity of the incriminating charges made in such proceeding is immaterial, if defendant published a fair and true account of such proceedings; and, therefore, conversations between the newspaper reporter and one of the parties to the proceedings, upon which the reporter claimed to rely as to the truth or genuineness of the incriminating charges, are not admissible in evidence.

In the absence of a specific request to charge, it cannot be alleged as error that the court failed to pass upon the question whether or not the published report was a fair and true report of the proceedings, as a question of law, but left it to the jury.

*It seems,*that letters offered in evidence in a criminal proceeding, and rejected because irrelevant, are not a part of the proceeding, in the publication of which a newspaper will be protected.

Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new-trial.

The facts are stated in the opinion.

*De Lancey Nicoll,*for appellant.

*A. W. Gleason,*for respondent.

Larremore, Ch. J.

The first ground for a reversal assigned by the learned counsel for appellant I do not regard as well taken. Undoubtedly it has been held, in certain classes of actions for libel, that it is competent to show, in disproof of malice, facts and information known to or believed by the person who wrote the alleged libel, which induced him to believe it was true. This rule may lead at times to the introduction of declarations by strangers to the action, *546to the admission of what are in reality *res inter alios*acta, because, by this exceptional form of proof, any malicious intent on the part of the libeler may be negatived. An examination of the authorities on this point, however, will show that they were all actions of private libel. They were cases where the communication was confidential, at least, if not technically privileged in character, consisting of a personal letter written by a friend to a friend to warn the latter against intimacy, or a matrimonial engagement, with the person whom the writer professed to consider unworthy *(Byam*v. *Collins,*39 Hun 204; *Atwill*v. Mackintosh, 120 Mass. 177).

I do not think this rule of evidence has any relevancy or force in the case at bar. The alleged libel here is in a public newspaper. It consists of what purports to be an account of a judicial proceeding in a police court; and, if the defendant published a fair and true account of such proceeding, the question of actual truth or falsity of the charges made by either side would be immaterial. The learned judge, therefore, did not err in excluding the conversations between the reporter and plaintiff’s husband upon which said reporter claimed to rely, as to the truth and genuineness of the “love ” letters embodied in the article in question.

The learned counsel for the appellant further claims that the trial judge erred in submitting to the jury the question, whether or not the account published in the newspaper was a fair and true report of the proceeding before the magistrate, and in not passing upon such question himself as matter of law. The cases of *Ackerman*v. *Jones*(37 N. Y. Super. Ct. 42), and *Matthews*v. *Beach*(5 Sandf. 256), are cited on this point. A sufficient answer to such contention, as far as this appeal is concerned, is that the court was not requested on the trial to pass upon such question as matter of law, and that no exception was taken to the sending of the question to the jury. On the contrary, counsel for defendant submitted one or two requests to charge, which would seem to presuppose an intention on his part, that the general inquiry as to the fairness and truth of the newspaper notice should be left to the jury for determination. The exception at folio 232 will not avail. *547The case was tried by both sides upon the theory that the merits of the controversy should be submitted to the jury. If the jury were to pass upon the general question whether the publication was a just and true account, they were required to determine the subsidiary question referred to in such exception, on the principle that the less is included in the greater. The jury could not have passed upon the main question which# defendant’s counsel acquiesced in having submitted to them, without necessarily passing upon the subordinate question which said counsel by his exception attempts to arbitrarily single out.

If anything, the charge was too favorable to the defendant. The court instructed the jury that, although letters were not read or permitted to be read, yet, being offered in evidence, they would be a part of the proceedings, and the newspapers would have the right to spread them before the public, provided they were accompanied by a statement that they were not received by the court. Probably the learned trial judge did not intend to lay this down as á general proposition, and he would have ruled otherwise, if it had appeared that the letters were examined by the magistrate, and excluded because not germane to the subject of inquiry. If letters containing defamatory matter are offered in evidence and rejected because the magistrate considers them irrelevant or incompetent, I do not think that they thereby become a part of the proceeding before him, in such manner as to entitle a newspaper that publishes them to the protection of the statute. They may be utterly foreign to every question raised before the police justice. If the newspaper may nevertheless print them in full, it would afford a most convenient subterfuge for publishing libels with impunity on any subject that can be imagined. Suppose, for instance, a magistrate on the hearing of a proceeding for abandonment should refuse to admit or consider letters accusing the husband of forgery or arson. Probably under no pretext would it be claimed that a fair and true report of such proceeding could include the publication of such excluded letters.

We have examined the record, and considered all the ex*548ceptions taken, and can discover no good ground for disturbing the verdict.

The judgment appealed from should be affirmed, with costs.

Bischoff J., concurred.

Judgment affirmed, with costs.