Art. 12. Evidence.

Bullock v. Koon, 4 Wend. 531, 9 Cow. 30; Emery v. Miller, 1 Den. 208; Kinney v. Nash, 3 N. Y. 177. Where it is held that where words spoken derive their actionable quality from facts and circumstances extrinsic to the words themselves, such facts and circumstances must be proved or plaintiff cannot recover.

Where the truth of the charge is pleaded, the justification must establish the substance of the charge justified, though it need not be identical in letter and form. The defendant, in order to prove a justification, must show that the entire charge imputed to the plaintiff is true, and the justification must be as broad as the charge. The burden of proving the truth of the charge is upon the defendant. Miller v. Donovan, 16 Misc. Rep. 453, 39 N. Y. Supp. 820.

In an action against a mercantile agency for slander in a report, the terms of the subscription, signed by the subscriber to whom such information was communicated, are competent to prove the relationship existing between him and the defendant, and the privileged character of the communication. Ormsby v. Douglas, 37 N. Y. 477.

On the question of the meaning of the words proved as understood at the time, all the conversation of the party at the time is admissible. Coleman v. Pleystead, 36 Barb. 26, appeal dismissed, 40 N. Y. 341.

Papers referred to in a libel may be admitted for the purpose of explanation and interpretation. Nash v. Benedict, 25 Wend. 645.

Where defendants had published a charge against plaintiff that she was a drunken woman, it was proper to allow plaintiff to testify to the transaction on the date particularly referred to in the article complained of, and to the circumstances leading up to the affair. Tobin v. Sykes, 71 Hun, 469, 24 N. Y. Supp. 943.

Where defendant admits uttering the alleged slanderous words, he and his witnesses should be permitted to testify to their version of the alleged slanderous conversation. Judge v. Judge, 14 Civ. Proc. 138.

In an action for slander, evidence of crime other than that charged by defendant is not admissible. Haddock v. Naughton, 74 Hun, 390, 26 N. Y. Supp. 455, distinguishing Cary v. Hotailing, 1 Hill, 311; Hall v. Naylor, 18 N. Y. 588.

Where the articles upon which the action was based charged plaintiff with having committed adultery in the State of New

Art. 12. Evidence.

Jersey, proof of a New Jersey statute not pleaded in the complaint making adultery a crime, is not admissible. Stuart v. N. Y. Herald Co., 73 App. Div. 459, 77 N. Y. Supp. 216.

The fact that defendant introduced in evidence a letter forming part of the correspondence, which had been first introduced by plaintiff, does not authorize him to cross-examine plaintiff as to such letter especially when its effect was to call out evidence which was utterly inadmissible and highly improper. Palmer v. Matthews, 162 N. Y. 100.

In an action against defendant for publishing an article stating that plaintiff had been arrested with a married woman at Coney Island, etc., it was error to permit plaintiff to show that thereafter a third party had accused him of being arrested at Coney Island with a prostitute, and that for the purpose of proving his statement such third person had produced and read the article in question. O'Brien v. Bennett, 72 App. Div. 367, 76 N. Y. Supp. 498.

An averment on the part of the plaintiff that he was innocent of the crime imputed to him does not enable defendant to show that no crime was imputed. Harmon v. Carrington, 8 Wend. 488.

In an action for libel the testimony of the person who read the libel as to the manner in which he understood it is inadmissible. Van Vechten v. Hopkins, 5 Johns. 211; Maynard v. Beardsley, 7 Cow. 500; s. c., 4 Wend. 336; O'Brien v. Bennett, 72 App. Div. 367, 76 N. Y. Supp. 498.

So in an action for slander the testimony of persons who heard the words, that they understood the defendant to refer to plaintiff, the language being ambiguous, is inadmissible. Gibson v. Williams, 4 Wend. 320; Weed v. Bibbins, 32 Barb. 315.

But evidence of visits of men in the night-time and of the receipt of letters of an insulting character were held admissible as showing the sense in which an unauthorized advertisement was read, though no special damage on account of these matters was alleged in the complaint. Stafford v. Morning Journal Assn., 68 Hun, 467, 22 N. Y. Supp. 1008, affirmed 142 N. Y. 598.

In an action for stating plaintiff was a swindler, and had obtained credit by false representations, the truth of the statement being pleaded in justification and mitigation, evidence was proper that defendant's agent, to whom the representations were made, communicated them to defendant, and that he relied upon them. Kimball v. Herald Co., 21 Week. Dig. 34.

Where the complaint alleged defendants published a newspaper

owners

Art. 13. Procedure and Trial.

in which alleged libelous article was published, the answer contained a general denial and alleged that the plaintiff and the the publishers of the paper entered into an agreement whereby the plaintiff released and discharged the owners and publishers from all causes of action on condition that the newspaper would publish a retraction of the libel, and that such retraction was accordingly published, it was held that as defendants deny that they published the newspaper, any agreement between the plaintiff and the persons who actually published the newspaper was not available to the defendant. Potter v. Morning Journal Assn., 49 App. Div. 242, 63 N. Y. Supp. 223.

Actionable words, not specifically set out, cannot be proved. Gray v. Nellis, 6 How. 290.

In an action for libel, where it was charged that one clergyman made false statements as to another, a resolution of confidence adopted by the church after the publication of the libel is incompetent. Putnam v. Press Publishing Co., 46 App. Div. 600, 62 N. Y. Supp. 110.

An affidavit in an action for libel, showing that plaintiff was innocent of the crime charged, that it was committed by another, received in evidence against objection that the affiant should have been produced in court, was improperly admitted. Cudlip v. N. Y. Evening Journal Publishing Co., 174 N. Y. 158.

815

4. Trial, charge, and nonsuit

5. When question for court- When for jury.. 817 6. New trials and appeals

7. Costs

820

.. 822

SUBDIVISION 1.
Arrest.

Where the right to an order of arrest depends on the nature of the action, the rule that the affidavits used must state not only what the cause of action is, but that it exists, is sufficiently com

Art. 13. Procedure and Trial.

plied with when they positively allege the utterance of the defamatory language in the presence of divers persons. Where the complaint in action for slander sets up several causes of action based upon several distinct slanders, an order of arrest may be granted, although the existence of but one of the causes of action is sufficiently shown. It seems that the question whether a complaint in such action should allege the defamatory words in hæc verba cannot be raised upon a motion to vacate an order of arrest. Crandall v. Jacob, 22 App. Div. 400, 48 N. Y. Supp. 279.

An order of arrest may be granted in libel irrespective of the defendant's residence; when the defendant resides within the jurisdiction of the court, the order may be granted without proof that he is about to depart. On motion to reduce the amount of bail, defendants should show the facts constituting defense or any mitigation. Britton v. Richards, 13 Abb. (N. S.) 258.

SUBDIVISION 2.

Inspection of Books.

"In an action of libel brought against a corporation engaged in the business of preparing and distributing news matters to newspapers and news agencies, in which it appears that the books and records of the corporation with reference to the receipt, transmission, and dissemination of the alleged libels will be material evidence for the plaintiff on the trial, an inspection of such books and records will not be denied because it appears that it will enable the plaintiff to learn of publications of the alleged libel by third parties of whose identity he is now ignorant. The objection presented by an affidavit, submitted by the defendant's assignee for the benefit of creditors, in which the affiant denies that there are any books or records of the character mentioned by the plaintiff, is cured by limiting the operation of the order to such books and records of the character mentioned by the plaintiff as are in the possession or under the control of the defendant or the assignee." Palmer v. United Press, 67 App. Div. 64, 73 N. Y. Supp. 456.

SUBDIVISION 3.

Striking out and Amending Pleading.

Facts pleaded in an answer in an action for libel not constituting total defense may be competent upon the question of malice,

Art. 13. Procedure and Trial.

and will not be stricken out upon motion. Morgan v. Bennett, 44 App. Div. 323, 60 N. Y. Supp. 619.

Irrelevant allegations in an answer in an action for slander making charges of a criminal character against plaintiff, or statements prejudicial to his reputation, can be struck out on motion. It is no excuse for inserting them that they were alleged in mitigation of damages. Hilton v. Carr, 40 App. Div. 490, 58 N. Y. Supp. 134.

In an action against a newspaper for publishing evidence introduced in a divorce proceeding for adultery, an allegation in the answer that plaintiff had ill-treated his wife should be stricken out as scandalous and irrelevant. Cruikshank v. Press Publishing Co., 32 Misc. Rep. 152, 65 N. Y. Supp. 678.

In Fletcher v. Jones, 64 Hun, 274, 19 N. Y. Supp. 47, it was held that the defense in an action for libel containing a general denial was not demurrable.

Defendant in an action for libel, after answering that the statements were true, should be allowed to file an amended answer pleading justification, but should not be allowed to deny in such amended answer that defendant published the newspaper in which the alleged libel was printed. Canale v. Press Publishing Co., 61 App. Div. 143, 70 N. Y. Supp. 450.

SUBDIVISION 4.

Trial, Charge, and Nonsuit.

By the amendment made in 1898 to section 791 of the Code of Civil Procedure, an action in any court for libel or slander is a preferred cause.

Where, in an action for libel, based upon a newspaper publication, plaintiff's counsel refers to defendant's newspaper as containing pictures of a degrading character, and defendant's counsel remarked, "You point out one picture, one," whereupon plaintiff exhibits for the jury a copy of the newspaper which has been offered in evidence, and discusses the pictures which appear therein, the refusal of the court to allow defendant's counsel to withdraw a juror because of such discussion will not be disturbed upon appeal. Howell v. Press Publishing Co., 48 App. Div. 318, 62 N. Y. Supp. 908.

Charge in an action for libel, where the publication is libelous per se, must be taken as a whole, and if the distinction between