Lynch v. New York Times Co. , 157 N.Y.S. 392 ( 1916 )

Page, J. (dissenting):

The article was libelousper se. George M. Lynch, on being arrested, gave the name of his brother William and was tried and convicted. The article publishing an account of this proceeding contained statements identifying William Lynch as the former manager of the store of his mother, Theresa Lynch, and then falsely alleged that William had dissipated a fortune in riotous living and had disappeared. The court properly ruled that the article was not privileged.

The answer contained a third and partial defense in mitigation of damages that the article was published in good faith in reliance upon the truth of information received by reporters and agents, and that the publication was made without malice, express or implied.

The justice erroneously charged that this could be taken into consideration generally in the mitigation of damages, whereas he should have limited it to the question of punitive damages.

The belief in the truth cannot be taken to mitigate general damages. No exception was taken to this portion of the charge and I only mention it, as accounting in some degree for the verdict.

The defendant proved no defense, and the justice practically although not as clearly as he might, instructed the jury that they should bring in a verdict for the plaintiff for damages in such sum as they thought proper.

I do not think that this is a case for merely nominal damages, but that the publication concerning the plaintiff was made without any investigation or foundation in fact and called for substantial damages,

In my opinion the order should be affirmed.

Latjghlin, J., concurred.

Order reversed, with costs, and verdict reinstated. Order to be settled on notice.