#### Adelaide Richardson, Resp't, *v.*William Van Nostrand, Appl’t.

*(Supreme*Court, *General*Term, *Fifth*Department,

*Filed January*25, 1887.)

1. Exemplary damages — Vindictive action — Juey may awaed.

In vindictive action the. conduct and motive of defendant is open to inquiry with a view to the assessment of damages and if defendant in committing the wrong complained of, acted recklessly, wilfully, or maliciously, with a design to oppress and injure plaintiff, the jury in fixing damages may disregard the rule of compensation, and beyond that, they may, as a punishment to defendant, and protection to society, against a violation of personal rights and social order, award such additional damages as they shall deem proper.

2. Jury — Direction by couet as to matters op pact should be caeeFULLY SCRUTINIZED.

The jury can not distinguish between a direction in matter of law or fact; they are bound to take the law from the court, and a positive direction from the bench as to a question of fact is as potent as if it pertained to a question of law; and even an expression of opinion, calculated to influence the decision of the jury, in a matter clearly within their cognizance, should be critically scrutinized.

Appeal from judgment on verdict, and from order denying defendant’s motion for new trial on case and exceptions.

Slander. Tried at Allegany circuit, October, 1885, verdict for plaintiff $ 150. The complaint contained three counts, the first and second are for calling plaintiff a thief and the third for calling her a whore. • As to the charge of calling plaintiff a thief, defendant among other defences answered in mitigation of damages and in justification of certain transactions, called by the judge in his charge, the “ currant transaction ” and the “ apple transaction.”

*F. C.*Peck, for *appellant; E. C.*Olney, for respondent.

Angle, J.

The only point on this appeal in made by defendant’s exception to a part of the judge’s charge on the subject of damages. The entire sentence of which the excepted portion is a part, is as follows, the part excepted to being italicized, “ it is due, gentlemen, to good order in society and common decency among neighbors, that you should look to it, if you are convinced that the defendant has made these charges, that he should respond in such damages as you think the plaintiff is entitled to for having charged her with these crimes, and it is well in my judgment, for the defendant — no matter if his version of *420these transactions be a correct version, — -it is well for him to drop this currant transaction and to cease talking about these *currants;*he has talked about them, in my judgment, long enough; and it is time he stopped talking about this apple transaction and live in peace and comity with his neighbors.”

The portion of the charge excepted to is decidedly suggestive that in the judgment of the judge the damages should be sufficient to stop defendant’s talk about the currant and apple transactions. It goes further than an instruction to the jury that they might give such damages as would stop such talk by defendant.

In *Allis*v. *Leonard,*58 N. *Y.,*291, Chief Judge Chtjech says: “ Jurors cannot distinguish between a direction in a matter of law or fact; they are bound to take the law from the court, and a positive direction from the bench as to a question of fact is as potent as if it pertained to a question of law; aiid even an expression of opinion calculated to influence the decision of the jury in a matter clearly within them cognizance should be critically scrutinized.”

In the' present case the language from the bench was : “ It is well, in my judgment, for the defendant to stop, etc. . . . He has talked about them in my judgment long enough, etc.”

In vindictive actions, as they are sometimes called, .. . the conduct and motive of defendant are open to inquiry with a view to the assessment of damages, and if the defendant in committing the wrong complained of, acted recklessly, or wilfully, or maliciously, with a design to oppress and injure the plaintiff, the jury in fixing the damages may disregard the rule of compensation, and beyond that they may as a punishment to the defendant and as a protection to society against a violation of personal rights and social order' award such additional damages as they shall deem proper.” *Voltz*v. *Blackman,*64 N. Y., 444; *Brook*v. *Harison,*91 N. Y., 91-2.

In the charge in the present case the judge nowhere gives the jury any instruction as to the plaintiff’s right to recover more than compensatory damages, or upon the subject of vindicatory damages, except in the sentence in which the excepted portion of the charge is found and which sentence is given above, and that instruction is given with'an announcement of the judgment of the judge as to the allowance of an important item in such damages, the allowance of'which was a question for/the jury to determine. In this we think there was error.

•A new trial should be granted.

All concur.