Krug v. Pitass

44 N.Y.S. 864

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1897
• Status: Published

Opinions

HARDIN, P. J.

It seems the article published was libelous per se. Cruikshank v. Gordon, 118 N. Y. 178, 23 N. E. 457; Secor v. Harris, 18 Barb. 425; Carroll v. White, 33 Barb. 616.

2. The defendants gave evidence tending to show that they had no malice in the publication of the article. To rebut that evidence, plaintiff called Sullivan, who testified to a conversation with Pitass in 1890, which was objected to at folio 179, and in response to the objection the court observed: “This is direct evidence on the question of malice.” To that ruling no exception was taken. After some evidence was given, a further objection was made, to wit, “that it is incompetent as against Smeja, and on that ground I move to strike it out.” In response to that, the court observed: “It is incompetent as against Smeja, but is competent on the question of the malice of Pitass.” To that ruling no exception was taken. Thereupon the defendant’s counsel asked to have it stricken out, on the ground that it is incompetent as against Smeja. That was declined, and an exception was taken. Inasmuch as the evidence was admissible, it was not error to refuse to strike it out. Subsequently Frank A. Olszanowski was called as a witness, who gave evidence of a conversation with Pitass, and, when a question was asked if the witness had had a conversation with him, it was objected to, “on the ground that it is incompetent as far as the defendant Smeja is concerned.” In response to that question, the court observed: “I think it is competent as to these people who are inquired about, and the objection is overruled.” An exception was taken to that ruling. The effect of the ruling was to hold that it was competent as to the parties against whom it was offered. Before the evidence complained of was offered, Pitass, Slisz, and Smeja had testified, in effect, that they had no malice towards the plaintiff. To rebut that evidence, the testimony complained of was offered. It was legitimate evidence against Pitass and Slisz. When the court charged the jury, no request was made of it to limit the evidence complained of to the two defendants.

In Brown v. Allen, 4 Esp. 158, Lord Ellenborough said that the damages could not be severed, and give more against one defendant than the other, and it was proper for the jury to “give their verdict against both to the amount which they thought the most culpable of the defendants ought to pay.” This case was decided in 1802.

O’Shea v. Kirker, 4 Bosw. 120, was an action of libel against two defendants, and it was referred to a referee. He found that one of the defendants injured the plaintiff to the amount of $150, and that the other injured the plaintiff to the amount of $600, and it Avas held by the court that the plaintiff “may enter judgment against both defendants jointly for the larger sum.” It was further held, viz.:

“The judgment may be so entered, notwithstanding the referee decides that the plaintiff recover against the one defendant $150, and against the other $600 damages. When several persons are made defendants in an action of tort, in AA'hich it is alleged and proved that they jointly did the wrong complained of, each is as absolutely liable to the plaintiff for the whole damage as the other.”

In Lee v. McLaughlin (Sup.) 4 N. Y. Supp. 742, it was said that the plaintiff is entitled to enter judgment “against all the defendants found liable for the largest sum found against any one.”

It seems the exceptions do not require us to disturb the verdict in this case. During the trial, the plaintiff, in effect, asked to be permitted to discontinue the action as against Smeja.

Holley v. Mix, 3 Wend. 351, was an action for false imprisonment against Mix and Clute. The jury found for the plaintiff, and assessed the 'damages against Clute at 6 cents, and against Mix at $25. The case was removed into the supreme court on a bill of exceptions, and, near the close of the opinion, Savage, C. J., said:

“And, as there can be but one assessment of damages, the plaintiff is permitted to enter a nolle prosequi against Clute, and perfect judgment against Mix. This practice is justified by the cases cited (1 Saund. 207, note a), and the reason there given seems to be sound,—that as this action is several as well as joint, and as the plaintiff might originally have commenced his action against one only, so after verdict he may elect to take his damages against either ct them; and, where several damages are given, the plaintiff may cure the irregularity by entering a nolle prosequi against all but one, and take judgment against him alone.”

The motion for a new trial was denied, and leave was given to the plaintiff to enter a nolle prosequi against Clute.

If we Avere of the opinion that there was error as to the defendant Smeja, and considering the fact that the plaintiff offered to discontinue as to him, we might order a reversal of the judgment as to Smeja, and affirm the judgment as to the other two defendants. My own inclination is to affirm as to the three defendants.

3. There seems to be no occasion to interfere with the amount of damages awarded by the jury. Scott v. Publishing Ass’n, 74 Hun, 285, 26 N. Y. Supp. 690; Bergmann v. Jones, 94 N. Y. 51.

Judgment and order affirmed with costs. All concur, except FOLLETT, J., dissenting.