Blohm v. Bamber , 31 N.Y. St. Rep. 816 ( 1890 )

Clement, G. J.

This action was brought to recover damages for slander* and at the trial term, a verdict was rendered for plaintiff for the sum of $1,-750. Ho appeal was taken from an order denying a motion for a new trial on the minutes, and no such order appears in the case. There is only a statement, in the record that the court denied the motion. It'follows, therefore, that we can review only questions of law, (Code, §§ 999, 1346;) and it also folllows that the questions whether the verdict was against the weight of evidence, and whether it was excessive, are not before us for consideration.

It is claimed that it was error not to allow the defendant to prove that he had offered to make an apology to plaintiff. Such testimony was only competent in mitigation, and any fact which might tend to mitigate damages should have been pleaded. When the plaintiff rested, and again at the close of the case, the defendant moved to dismiss, which motions were denied,'and we think properly.

The request to charge that a verdict for nominal damages was a vindication is in conflict with the law as decided by the court of appeals. Sanderson v. Caldwell, 45 N. Y. 398, 406. The judgment appealed from must be affirmed, with costs.