The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-05-07
THE LAW OF LIBEL.
JUDGMENT REVERSED DY THE SUPREME COURT
IN THE SUIT OF PHOEBE ROBERTSON AGAINST

JUDGMENT REVERSED DY THE SUPREME COURT
THE HERALD
The General Term Of the Supreme Court yesterday
rendered an important decision touching tho law Of
libel in tho suit some time ago brought by Phoebe
Robertson against the HERALD. The action was
brought 10 recover $4,000 damages tor an alleged
libcilous publication IN the HERALD OF the l9lh OF
November, 1876. The matter complained OF grew out
OF advertisement published which, was charged,
reflected upon the character OF the plaintiff and dam
aged hcr business as a boarding house Keeper The
answer to the complaint denied any Intentional or
malicious injury, and also alleged That tho plaintiff
not the real party in Interest IL
further asserted that tho publication was
true in substance aud that tho primarily grew
out Of quarrel between the plaintiff and her daueh-
ter and certain other parties. OF whom caused
tho publication to be made. II was further stated
thar, although rctraction consented to by tho
defendant. yet the plaintiff, who expressed her will
ingness to withdraw tho suit If such was made, was
not permitted do On tho trial below, tho jury
notwithstanding tho voluminous proofs tho part OF
Tho defendant, gave verdict for the plaintiff Tor
$4,000 damages. From TINS an appeal was taken
yesterday General Term. Chief Justice Curtis, writ
ing tho opinion, this vcrdicI ana orders a
trial. Tho Chlei Justice, 10 the course Of
elaborate OPINION discusses the evidence u great
length and then goes on 10 say
cniEF JUSTICES REMARKS.
grave question arises 10 whether there was not
Testimony received At tho triai which should have
been excluded. A witness, Meredith L. Jones, Esq,
counsellor Law, testified TO tho effect that shortly
after tho LIST Of January 1877 no to
the plaintiffs boarding house aud made examina-
ton OF the rooms aud prices, and expected II he had
gone ther. 10 pay S2S per week Tor floor
OF No. 81, and when asked why no dad not SO
house no answered: swell, my wife called my attcn
crowd at Nos 81 anu IS West twenty nth street" He
also estied that u led HIM to hesitate about going
there and taat no did not so there Upon his cross
examination he testified that he did not remember
what newspaper was, that he thought was IN the
legal columns, the reports OF tho courts The
publication complained oil was In the 'Pcrsonal' col
umn OF the HERALD OF November, 10, 1876 The de-
iendant moved TO strike out the testimony OF this
witness, the ground that II did not appear TO relate
10 the hbci complained Of THIS motion was denied,
the Court stating ct has no elect IN binding you,
but simply giving what he neard" aud the decadaht
excepted There was no evidence connecting the de-
tendant with this publication made alter January
1877, which, IN act was tho report oi legal pro-
ceeding between these parties ana published IN an
other newspaper Tne testimony OF tue witness whom
1t appeared that NC did not remember IN what newspa
per he saw the words that led him 10 hesitate about
going 70 board at tho plaintiffs house, or not to 80
thero should havo been stricken out pursuant to the
DESCENDANTS motion. Tho defendant only be called
respond Tor his own publication and The dam
ages caused by II II another newspaper published tho
report OF legal proceeding III this cause that preu-
diced the plaintiff defendant liable Tor that.
II such publication was unlawful the plaintiff rs cnt
tied redress from that publication II lawful she
without remedy.
snoULD HAVE BEEN STRICKEN QUE
As soon ~ was apparent that Tho tnj urcs which
the witness testified the plaintiff horseii sustained IN
her business from his attention bong called to pub
lcaton respecting his boarding house occa-
stoned by tne publication complained OF in THIS su,
but by another tho motion to strike this testimony
should have been granted II Il appeared that tho
timony did not prejudice the dsiendant anu that
the jury were misniormcd by its remaining
before them subject 10 what stated by the Cours
NJ the time Of tho DENIAL OF the motion 10 strike
the defendants objection TO II would DO answered.
But It Is dncuit 10 take this view OF II. Tho tcsti-
mony oil this witness remained before them There
Is nothing 10 indicate that they wcro TO exclude II
wholly from lheir consideration Is II probable they
drow tho distinction In determining the plaintiffs
damages between such by tho publica.
ton In The defendants paper and such caused
by publications in other journals and which,
as reports Of loyal proceedings, were law.
iulf Can It DO determined that the legal
rights OF tho defendant not prcudIced and ;hs
jury influenced 10 some extent adversely 10 him by
this evidence? These questions cannot cuslIy b
satisfactorily answered Ia tho negative. II Is better
10 declare by the rules Of evidence by which oil par
ties protected than 10 sustain depart from
them on grounds that are hot clearly trinblo. Ih(
judgment and order appealed from should DC reversed
and TRIAL granted, with costs 70 abide the event
Juugc Sanford concurs IN the opinion OF tho Court
Mr.. William w. Badger appeared Tor the plaintiff
Mr. John Townshcnd represe nted tho HERALD