Rosenwald v. Hammerstein

Larremore, J.

[After stating the facts as above.]— The defendant’s answer fully authorized the ruling that the only question for the jury was that of damages. Section 500 of the Code provides, for a general or specific denial of each material allegation of the complaint controverted, or of any knowledge or information thereof sufficient to form a belief.

A denial of “each and every other allegation in said complaint contained not hereinbefore admitted or specifically denied,” though sanctioned by decisions of the Special Term in our early practice (5 How. 331, 13 How. 7, 20 How. 158), is not authorized by the Code or approved by the court of -last resort (People v. Snyder, 41 N. Y. 400).

The question of the amendment of the answer upon the trial was addressed to the discretion of the presiding judge, and is not a subject of review on appeal (Richtmeyer v. Remsen, 38 N. Y. 206).

The declarations of the defendant prior to the publication, were admissible upon the question of malice, and the exception upon that point was not well taken.

The questions put át folios 47, 48, 49, 50, 51, of the case were clearly immaterial, and were properly overruled.

The objection and exception to the admission in evidence of a publication subsequent to the commencement of this action is not available, because the ground of the objection was not stated (Daly v. Byrne, 77 N. Y. 182). Moreover the court instructed the jury to disregard and not to consider it, on the question of the aggravation of damages.

As the publication was libellous per se, the action was maintainable by the plaintiff individually (Fleischmann v. Bennett, 87 N. Y. 231).

It was within the sound discretion of the court to allow the question as to whom the article referred, no personal privilege being claimed by the defendant, and the answer to it removed all doubt, if such existed, upon the question of intention.

The chief ground of alleged error at the trial was the general citation of judicial authority on the law of libel.

The plaintiff’s counsel, as a part of his argument, read from a newspaper report a charge by Judge Wylie upon the subject, to which the trial judge referred, and said : “ You are to take nothing in this case from what I have said to infer anj’thing in regard to my private opinion. This is a case exclusively for the determination of the jury. .....The whole question of malicious intent and the amount of damages is one exclusively for you.”

Briefly considered, it was but an indorsement of an opinion upon the law governing a libel. The questions of fact were left to the jury upon a charge as favorable to the defendant as the circumstances of the case allowed.

This distinguishes the case at bar from Reich v. The Mayor &c. of New York (ante, p. 72), where the facts in the case on trial, and the case cited, were declared to be identical.

After a careful examination of all the appellant’s exceptions I have reached the conclusion that they should be overruled.

The case was fully and fairly presented to the jury and the judgment entered upon the verdict should be affirmed, with costs.

J. F. Daly and Beach, JJ., concurred.

Judgment and order affirmed, with costs.