The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-11-08
VICTOR HERBERTs JUDGMENT
Court Allows Him $4,000 Damages
for Unjust Criticism.

A Jury of twelve men who listened to
evidence in the action brought by VIC
tor Herbert against the Musical Courier,
charging libel and asking for $5O,00O
damages. returned a verdict in favor of
the plaintiff for SIS, 900 at the conclusion
of the trial on Tuesday, October rs. The
jury deliberated one hour and forty
minutes The trial occupied four and
one-half hays, says the COncert-goer.
The history Of this action. up to Oc-
tober %. inclusive, was told in our issue
of last Saturday. but for the benefit of
those readers who did not see that ISSUE
we repeat the facts briefly.
In it's issue of July II, 1901, the Mu-
steal Courier printed an editorial from
the pen of Marc A. Blumenberg, in
which appeared the following statements
about Mr.. Herbert and his music:
"All of Herbert's written-to-orde
comic operas are pure and simple plag-
iarisms. There is not one single aria
waltz movement, polka. galop or march
in these operas that has touched the
public ear, and that the street organs
and pianos have ignored them is the
best evidence that the public did not
find them palatable- The whole
Herbert repertory is stone dead.
Everything written by Herbert is cop
led; there is not one original strain in
anything that he has done, and all his
copies are from sources that are comic
an agglomeration of puerile piracies.
= Great symphony conductors are
not drafted from the ranks Of composers
Of shoddy American farce operas, alias
leg shows
The article went on to say that Her
bert had been identified solely with band
music and comic operas and that he
could not, therefore, be taken seriously
as a symphony orchestra conductor.
Through his attorney Mr.. Herbert de-
manded n retraction of this article,
which was refused. The action in Law
was then instituted and the case came
to trial last week before Judge TruaS
of the supreme court Mr.. Herbert was
represented by Arthur c. Palmer and
Mr.. Blumenberg's lawyers were Messrs
iunmel and Halves.
In its effort to prove the truth of the
charges made in the article the defense
first put Mr.. Blumenberg on the stand to
swear that it written fair and
truthful criticism, and to introduce as
exhibits examples of alleged plagiarisms
in Mr.. Herberts writings. Then to sustain
Mr.. BIumenberg's citations of plagiarisms,
Platon Brounoff, Sig. Viennesi, Sig. Buzzi-
Peccia William c. Carl and A ]. Good
ricn were called as experts. The sum total
of their testimony was that all of Mr..
Herbert's music is vaguely reminiscent of
the style of earlier writer's; that the mel
ody of the Serenade in Herbert opera of
that name is similar to that of an obscure
song called ''Grace O'Moore;" that a GER
tain passage of the Wizard of the Nile
Is somewhat like q passage in Beethoven S
sage of the same opera is reminiscent OF
| Offenbach's ..Paquerette;" that there is a
similarity between Moszkowsky's 'Sere-
made and a certain phrase in Mr.. Herbert's
''Serenade:" and that the first measure in
Faure's Palms" is almost identical with
/ a measure in Mr.. Herbert's music.
Mr. Herbert testified that when he wrote
the music which he was charged of Dor
rowing from these various sources he had
never heard Grace O Moore OF
Moszkowsky's 'tSerenade." He further
testified as a musical expert that the sim
ilarity pointed out by the defendants wit
nesses is so slight as to be of no signifi-
4 canoe whatever.
As experts to sustain Mr.. Herbert's con
tention. Walter Damrosch. Henry K. Had
Hey. Julian Edwardes and Herman Perle
4 were called TO the stand. They were abso
lutely unanimous in disclaiming any must
| cal significance to the trif1ing sinilaritie,
pointed out by the defendant, and in ac
cording to Mr. Herbert an original and in
dividua1 style as composer
The jury then retired and in one hou
and forty minutes brought in a verdic
for plaintiff of s15.o0o.