By the Court.
Boswobth, J.
The points most strenuously insisted upon in support of the motion for a new trial, are :—
First. That neither the matter stated in the eighth, nor that stated in the eleventh cause of action, and alleged to have been published by the defendant, is libelous. And that damages having been assessed generally on all the causes of action set forth in the complaint, the judgment must be reversed.
Second. That the deposition of Strakosch was improperly admitted in evidence.
Third. That it was erroneous to allow the plaintiff to give evidence of the income realized by the defendant from the publication of' the New York Herald.
Fourth. That in a civil action for a libel, a jury have no right to give punitive damages, or damages by way of punishing a defendant, for a deliberate purpose to injure the plaintiff, wound his feelings, and subject his character to reproach; and that the court erred in refusing to charge the jury that damages could not be given for such a cause.
Fifth. That the damages are excessive, and that the defendant should have a new trial on that account, if no other.
■ We understand the court to have. decided, when this case was formerly before the general term, that the matter set forth in the eighth and eleventh counts, and in each of them, and alleged to have been published by the defendant, is libelous. (Fry v. Bennett, 5 Sand. S. C. R., 54, 56, 75).
Of either count, we deem it sufficient to say that, assuming the extrinsic facts which are averred to be true, the words published are susceptible of the construction and meaning imputed to them by the pleader. The jury having found these facts to exist, and that the words were used in the sense im[293]*293puted to them, the judgment cannot be disturbed merely on the idea that either of these counts is bad in substance.
Strakosch was examined de, lene esse as a witness in this action, and the plaintiff offered his deposition in evidence, after having proved by Sheridan Corbyn that he knew Strakosch, and last saw him in this city about six weeks previously.
That on the morning of that day he called at the house of 'Strakosch, and the wife of the latter told him that Strakosch had gone to Cincinnati. The defendant objected to the read- ' ing of the deposition of Strakosch, on the ground that his absence had not been proved. The court admitted the evidence, and the defendant excepted.
The statute on the subject declares that such a deposition may be read, “ after it shall have been satisfactorily proved that such witness was unable to attend such trial or assessment of damages, personally, by reason of his death, insanity, sickness or settled infirmity, or that he has continued absent out of this State, so that his attendance at such trial or assessment of damages could not be compelled by the ordinary process of law.” The right to read-this deposition depends, in this case, upon the question, whether it was “satisfactorily proved that' Strakosch had continued absent out of the State, so that his attendance at the trial could not be compelled by the ordinary process of law.” By satisfactory proof, must be meant evidence recognized by law as competent in its nature to prove the fact, and sufficient to prima facie establish it.
The witness, Corbyn, does not state where he lived, how often he had been in the habit of seeing Strakosch, nor that his relations with him, nor that his own business was such that he would have been likely to have seen him had he been in the city during the two or three weeks preceding the trial. He does not appear to have even inquired when Strakosch left for Cincinnati. For aught that the wife of the latter is testified ■ to have said, he might as well have left the previous day as before the cause was noticed for trial. The statute requires proof of more than the actual absence of the witness from the State on the day the action is tried. Such a continued absence must be proved, that- ordinary diligence to procure his attendance by process of law would be ineffectual. The evidence to [294]*294give a right to read the deposition must be such as would make it erroneous to reject the deposition. Giving to the-declarations of Strakosch’s wife the fullest effect, no one can conjecture from it when Strakosch left the State. No good reason can be assigned for receiving her declarations as proof, when she might have been called to testify to the fact, if it was as she is represented to have stated it. The statute, by requiring the fact to be “ satisfactorily proved,” should not be construed to admit of mere hearsay evidence, when direct and competent evidence appears to have been as easily attainable.
In Guyon v. Lewis, 7 Wend., 26, the deposition was taken and cause tried before the existing statute was enacted. (Id. 28). The deposition was taken in August, 1828, and the cause was tried in January, 1829. The plaintiff testified to the court that the witness, immediately after being examined, told the-plaintiff he was going up the North river, and expected to leave the State ; that previously he was in the habit of seeing him, but had not seen him since. (Id., 28). He was a transient person ; had no fixed habitation anywhere, and was a journeyman carpenter, seeking employment. That was held sufficient. In Jackson v. Rice, 3 Wend., 180, a deposition of Richard Harrison, taken under the act to perpetuate testimony, (1 Rev. Laws, 455), was offered in evidence, and rejected. The preliminary proof was that of a witness who proved that Mr. Harrison was between seventy-five and eighty years*of age,- and that the witness believed, from the ill state of his health, and the infirmities consequent upon his advanced age, he was-unable to attend at the circuit as a witness. He had not, however, seen Mr. Harrison in several years, and did not personally know the state of his health. The deposition was rejected. The court said, “ for aught that appeared, he might, although eighty years of age, have attended the court. At all events, the judge was not bound to presume him unable to attend. The plaintiff should not rely upon presumption where it was-, his duty to produce proof.”
In Jackson v. Perkins, 2 Wend., 308—315, a deposition of' Mrs. Vischer, taken under the same act, was offered in evidence. It was allowed to be read, on a stipulation of the plaintiff’s counsel that a judgment of nonsuit might be entered [295]*295if the Supreme Court, on a case made, should be of the opinion that the deposition ought not to have been received. The evidence of her inability to attend was, that she was over seventy-four years of age; and one of the witnesses testified that from his knowledge of her situation and infirmities, he believed she could not endure a journey from Albany to Ogdensburg, without the most serious injury to her health. This was held to be sufficient. (See Clarke v. Dibble, 16 Wend., 601; The People v. Hadden, 3 Den., 225). I think the spirit of these decisions requires legal proof, as contradistinguished from mere hearsay evidence or belief, especially when it is apparent that it is as easily attainable as the inferior proof which may be offered. The mere declaration of a third person should not be received as competent, and certainly not as satisfactory proof of any fact, when such third person can be as easily procured to testify to the fact as the one offered to prove his declaration respecting it. In this case, all the proof that was given of the continued absence of Strakosch from the State was the declaration of his wife that he had gone to Cincinnati, (not saying when he went), and that the witness had not seen him in six weeks. (Robinson v. Marks, 2 Mood. & Malk., 375, and 1 Campb. R., 172).
Allowing such testimony, would furnish opportunity for collusion, and violate the rule that mere hearsay evidence is inadmissible, without the slightest necessity for it, in a case in which it was just as feasible to call the party who made the declaration as some one who heard it made. Testimony by his wife, that Strakosch left the city, avowedly to go to Cincinnati, stating when, that she had not seen or heard from him since-, or had received letters from him bearing the Cincinnati post office stamp, would undoubtedly be satisfactory proof. We are of the opinion, that on the evidence given, the plaintiff was not entitled to read the deposition.
The defendant is therefore entitled to a new trial, on account of the admission of this deposition in evidence. This conclusion renders it unnecessary to pass upon any of the other questions argued on the appeal, except such as may arise upon a second trial, and in respect to which the ruling of the court on such trial may properly be required.
[296]*296A New York Herald, of the date of Dec. 15, 1851, purporting to state its average daily circulation from 1842 to 1851, inclusive, and the annual receipts for it in 1835, the first year of its existence, and also in the year 1851, was offered in evidence “ for the purpose of showing the circulation of the Herald in the years 1848-49, and the income of the office.”
It was objected to, “ on the ground that the defendant was in no way connected with it by proof, and that it was irrevelant.” The objection was overruled, and the defendant’s counsel excepted. It was then read, “ to show the circulation o'f the paper and its income.” The proof sufficiently connected the defendant with that number of the Herald. The paper was “ relevant,” and was competent evidence to show the circulation of the Herald, and of the extent to which the libelous matter had been published. So much of the extract read, as related to this point, was proper evidence.
The objection was not taken that the passage relating to the receipts of the Herald should not be read, but the objection was to the whole article. In not attempting to discriminate between the different points of it, the objection seems to have assumed, that as a whole it was not admissible for any purpose, and the ground of objection taken, was that it was irrelevant.
Whether the part relating to the receipts "of the office, if specially objected to, should have been excluded, or whether its admission can be seen to have so prejudiced the defendant that, treating this as a motion for a new trial on. a case, as well as an appeal from the judgment, a new trial should be granted, will depend upon considerations connected with the charge on the subject of damages, and exceptions taken by the defendant to the refusal of the court to charge on that branch of the. case, as requested.
The defendant requested the court to charge,the jury, “ that if the jury should find any ground in this case for giving damages to the plaintiff against the defendant, their verdict should be for such sum only as would, compensate the plaintiff for the injury he has sustained therefrom, and that the jury are not at liberty to give to the plaintiff any further sum, by way of punishment of the defendant, or by way of vindictive damages, or as smart money.” The court refused so to charge, and [297]*297the defendant excepted.' It is not contended that the terms of the charge, as given, are particularly exceptionable.
The jury were instructed that the plaintiff bad not proved any specific loss to his business as- an opera manager. “ In estimating the damages, they were to look at the character of the libels and the business of the plaintiff, not giving way to any feelings of prejudice, but examining the whole matter like business men, and so drawing their inference as to damages. That the court had always held the rule in such cases to be, that the jury could look at the whole character of the transactions, and that they could take into consideration all the proof before them of any malicious and actual intent to injure the plaintiff; that it was contended ■ the evidence of Strakosch proved actual malice, and an intention to injure the plaintiff and break up his business. They would examine this evidence carefully, and determine whether it should be credited, and whether they could 6 rely upon the representations he makes, that Mr. Bennett declared his intention to finish, or otherwise injure and break down the plaintiff.’ If it should come up to that, then the defendant stands before us as a man who deliberately undertook to do an injury; and if he fail to prove his allegation to be true, he cannot escape with nominal damages. The whole question of damages is entirely within your sound discretion. If you find for the plaintiff, you will give such damages as the occasion requires.”
If the charge, as given, was not erroneous, and was as favorable to the defendant as he could properly require, then the question arises whether there was any error in refusing to give the instruction sought, or whether the not giving of it may be reasonably inferred to have been a substantial prejudice to the defendant. I state the latter alternative, because the action is before us upon a case, as well as upon exceptions to the decisions of the court.
The case does not show nor state any thing to legally justify the inference that the plaintiff urged the jury to apply any other consideration in estimating the amount of damages than those which the charge, as given, approved, or insisted to the court that any instructions should be given, variant from those which the defendant, especially asked the court to give, unless [298]*298it is to be inferred from the fact of the request' itself. I cannot believe that when a charge, unexceptionable in itself, has been given, it is error not to go further, and charge a proposition, which, as an abstract one, is sound, when the converse of it has neither been asserted by the adverse party nor its application invoked to the disposition of any part of the case.
Unless the defendant, in his request to the court to charge that in addition to compensating the injury, the jury were not at liberty “ to give any further sum by way of punishment of the defendant, or by way of vindictive damages, or as smart money,” used these three alternatives as synonymous expressions, then it was not erroneous in any view to charge as requested, if “ vindictive damages,” or damages “ as smart money,” could properly be given. Unless his proposition as an entire one was sound, it was not error to refuse to instruct the jury to adopt and be governed by it. We do not understand the learned counsel for the defendant to deny that in estimating damages in an action of libel, the jury are not only to consider and compensate any actual and pecuniary loss, but if the injury was wilful or intentional, they may consider the mental sufferings of the plaintiff, the circumstances of indignity and contumely under which the wrong was done, and the consequent public disgrace to the plaintiff, together with any other circumstances belonging to the wrongful act and tending to the plaintiff’s discomfort.
But he insists that when the jury, in the exercise of a sound discretion, have arrived at what, in their judgment, is a proper compensation—having reference to all these circumstances—their duty and power end ; and they can add nothing to such compensation to punish the defendant for the public good, by deterring him from doing similar wrongs to the same plaintiff or to others.
One consideration naturally suggests itself upon the mere statement of these propositions. A plaintiff who has been inj ured by a tort or wrong of a defendant, is entitled in all cases to his actual damages. If these include compensation for mental suffering, and a consideration of the circumstances of indignity under which the wrong was done, the p,ublic disgrace inflicted, and other actual discomfort produced, the plaintiff should be compensated at all events, whether the wrong was [299]*299wanton, or was done believing the charges published to be true.
In either case, the mental suffering must be as great, the circumstances of apparent.indignity are the same, and his disgrace will be as absolute and mortifying in the one case as the other,' until his character has been vindicated by a verdict establishing the falsity of the calumnies charged against him. If such considerations are not constituent elements of damage, and if a person who has been injured in these respects, is not to be compensated by damages, as a matter of strict legal right, and if a defendant is to be exonerated from such damage, when the injury was not wanton, and is to be subjected to them when it was, then such damages may not inaptly be termed punitive, or vindictive, or damages given as smart money.
If the right to them does not result from the fact of the wrong, and the suffering and disgrace caused by it, then they are not given to compensate for such inj uries, as a matter of course, merely because he wrongfully caused them, but because he caused them from a deliberate purpose to inflict them, without anything -to palliate or mitigate his conduct. Logically speaking, such damages when given, are awarded full as much to punish a defendant as to compensate a plaintiff; and they are given as much by way of smart money, as because the plaintiff is entitled to them as an indemnity, inasmuch as they are given in consequence of the wantonness of the wrong, and not merely on account of the sufferings, discomfort and disgrace caused by them to the plaintiff. A reference to some of the cases will show that the decisions in the courts of this State, on this point, have been uniform. Tillotson v. Cheetham, 3 Johns. R., 56, was an action for a libel. No plea was put in, and a writ of inquiry was executed before Ch. J. Kent and a jury. The judge charged the jury, that the case- “ demanded from the jury exemplary' damages; ” * * * "x" “ that he did not accede to the doctrine that the jury ought not to punish the defendant, in a civil suit, for the pernicious effect which a publication of this kind was "calculated to produce in society.” The defendant moved to set aside the inquest, and insisted that “ the charge of the judge was incorrect in stating that the plaintiff was entitled to exemplary [300]*300damages, on account, of the injurious tendency of such publications to the community. In a private action, the party can recover only for the private wrong; he has no concern with ■ the public, offence, for which the defendant must atone on the indictment.”
The motion was denied. Kent, Ch. J., after citing cases, which, in his view of them, sanctioned the doctrine contained in this part of the charge, remarks, that “ it is too well-settled in practice, and is too valuable in principle to be called in question.” The report of the case states, that “ Thompson, J., and Van Ness, J., declared themselves to be of the same opinion.” Spencer, J., said, that “ in vindictive actions, such as for libels, defamations, assault and battery, false imprisonment, and a variety of others, it is always given in charge to the jury that they are to inflict damages for example’s sake, and by way of punishing the defendant.”
This decision was made in 1808, and seems to be a direct adjudication of the question presented in the request to charge.
In Hoyt v. Gelston, 13 Johns. R., 141, 151, which was an action of trespass for seizing a vessel, &c., the plaintiff’s counsel admitted “ that the defendants had not been influenced by any. malicious motives in making the seizure; and that they had not acted therein with any view or design of oppressing or injuring the plaintiff. The presiding judge held, that such .admission precluded the plaintiff from claiming any damages ’ ■against .the defendants, by way of punishment or smart money ; ■and that after such admission, the plaintiff could recover only (the actual damages sustained, and he gave that direction to the jury.”
In Wory v. Jenkins, 14 Johns. R., 352, being an action of trespass for beating the plaintiff’s mare, by reason whereof she died, the mare was proved to be worth $50 or $60. The judge told the jury the plaintiff was entitled to recover the value of ' the mare ; and “if they believed ás he did, that the defendant had whipped her to death, it was a case in which, from the wantonness and .cruelty of the defendant’s conduct, the jury had a right to give smart money.” They found a verdict for $75. A motion was made to set aside the verdict, for excessive damages and misdirection of the judge. The court said, “We think [301]*301the charge of the judge was correct; and we should have been better satisfied with the verdict if the amount of damages had been greater and more exemplary.”
In Woodward v. Paine, 15 Johns. R., 494, the same instruction was given to the jury, and the correctness of the decision affirmed.
In Root v. Ring, 4 Wend., 113, which was an action for a libel, the presiding judge, after giving his views of the evils of a bitter and unmitigated aspersion of private character, through the medium of newspapers, stated in his charge, that “ in a fitting case a jury could render no more meritorious service to the public than in repressing this enormous evil. It can only be done by visiting with sévere damages him who wantonly and falsely assails the character of another through the public papers.” Ro exception was taken to this part of the charge.
The chancellor, in his opinion, stated the rule to be, that “the jury may not only give such damages as they think necessary to compensate the plaintiff for his actual injury,‘but they may also give damages, by way of punishment, to the defendants. This is usually denominated exemplary damages, or smart money.”
In Fero v. Ruscoe, 4 Comst. 162, which was an action for slander, the judge charged, that “ the failure to establish a justification was, in law, an aggravation of the slander, and that the defendant was not entitled to any benefit from the evidence given, to make out a justification, if the jury believed that it failed to make out a full justification.” -An exception was taken to this charge.
The court of appeals held the charge to be correct, and said that an, attempt to justify, though honestly made, was an aggravation of the original wrong. If the defendant makes a mistake, it is at .his own peril.
In Allen v. Addington, 11 Wend., 380, an action for falsely-representing the credit of one Baker, whereby the plaintiff was induced to sell him goods to the value of $2,000, the judge instructed the jury that “ if they should consider the plaintiff entitled to recover, he would be entitled not only to the amount of the goods sold, with the interest of the same, but also to exemplary damages.” The defendant excepted to the charge, [302]*302and the jury found a verdict for the plaintiff for $2,564 84 damages.
"When the cause was before the Supreme Court, for a new trial, that court held that the rule of damages stated to the jury was not objectionable. A writ of error was brought to the court for the correction of errors.- (7 Wend., 26, 199).
The judgment was reversed on the sole ground that the second count was bad in substance; but the third count being deemed sufficient after verdict to sustain the judgment, the record was remitted to the Supreme Court, with liberty to the plaintiff to apply there to amend the Postea, so as to apply the - verdict to the third count, (the first count not having been proved), and to render, judgment thereon; and if such leave was refused, to apply for a new trial, and for liberty to amend his declaration before the awarding of a venire de nova. (11 Wend., 421). Application was made to the Supreme Court for leave to amend the Postea, and enter judgment on the third count, which was granted. (12 Wend., 215).
This seems to be a direct affirmance of the proposition, that in an action of tort, although it affects property only, and the actual damages can be ascertained, exemplary damages may be given, in a case in which the tort resulted from a purpose to deliberately and intentionally injure the plaintiff. Although the doctrine that exemplary or vindictive damages may be given in actions of tort, when the wrong was wantonly or maliciously committed, has been uniformly acted upon at nisi prim, and sanctioned both by the Supreme Court and the court of last resort of this State, its justice or any direct authority for it, has recently been denied in Dain v. Wykoff, 3 Seld. R., 193, by an eminent judge of the Court of Appeals.
We have also been favored with the opinion of Mr. Justice Jewett, and that of Mr. Justice Mason, in the case of Taylor, Hale and Murdock v. Church. That was an action for libel. The judge charged, that “If the jury were satisfied that the defendant was influenced by actual malice or a deliberate intention to injure the plaintiffs, they might give such further damages (in addition to a full compensation for the injury) as are suited to the aggravated character which the act assumes, and as are necessary as an example to deter from the doing of [303]*303such injuries.” To this there was an exception. Mr. Justice Jewett held this part of the charge to be correct; and Mr. Justice Mason held it to be clearly wrong. A note of the reporter states, that five members of the court did not express a concurrence with either judge on the question now under consideration. All the judges agreed with Mr. Justice Jewett in granting a new trial, oh another ground, stated in his opinion. How many of the judges were present on the argument of that case, or took part in the decision of it, the reporter’s note does not state.
If the Court of Appeals has not directly affirmed the contrary of the instruction sought on the trial of this action, neither has it affirmed that such an instruction would be proper. To instruct a jury, as the judge before whom this action was tried was requested to charge the jury in this case, would be directly in conflict with the law, as it has been uniformly stated to juries, in such actions in this State, from the earliest period of its judicial history, so far as the practice is evidenced by reported decisions.
Under such circumstances, we do not feel at liberty to disregard a rule so long and uniformly held, and directly affirmed by the Supreme Court of this State, half a century ago, and if not expressly decided, at least clearly approved by the court for the correction of errors, in Allen v. Addington, and in Root v. King. (See Day v. Woodworth, 13 How. U. S. R., 371, 372; Austin v. Wilson, 4 Cush. R., 273, and the cases cited by counsel in Randall v. Stone, 1 Selden, 18).
If in actions of libel and slander, and in other actions of tort for injuries to the person, or to character, damages may be given when the act was" wanton or actually malicious, which would not otherwise be allowed, although in each case the actual pecuniary injury, the extent of personal suffering, the attendant circumstances of contumely and indignity, and the public disgrace, be precisely the same in the one case as in the other, it is of no practical consequence whether such damages be termed punitive, vindictive or compensatory. By whatever name they may be designated, they are manifestly given on account of the wantonness or malice of the defendant’s conduct, and the very rule which determines whether they may [304]*304be given or must be withheld, has no real principle on which it can stand, if it be conceded that they cannot be given by way of example, or to pnnish atrocity of conduct.
While such damages are allowed to be recovered, it cannot be an indifferent consideration whether a defendant is rich or poor. Damages which would be exemplary, when inflicted upon a person in moderate circumstances, would be trivial, and in no practical sense exemplary, when imposed upon a person whose property and income were v.ery much larger.
Who the parties to a controversy of such a character as this, are, what are their pursuits and positions, and what the influence resulting from them by a libel published by either of the other may be, are not unimportant parts of the transaction itself. Such considerations sometimes give to a libel and slander all that it has of a snbstantial interest or importance; and " sometimes they are of such a character, that however gross the terms of the libel, they alike fail to give respectability to the action, or excite interest as to the defence.
In considering the question raised by the exception to the refusal to charge as requested, we have not referred to the decisions of the courts of any other State. We have forborne to make such a reference, for the reason that the decisions of the courts of this State have been uniform, and reach back to a period so remote, that we do not feel at liberty to treat the question as an open one in this State, notwithstanding the doubts recently expressed by some members of our Court of Appeals in relation both to the justice of the rule, and the existence of any authority by which it can be upheld.
A new trial is granted, on the ground that the deposition of Strakosch was improperly admitted. A new trial being granted on that ground, it must be with costs, to abide the event of the action.