The important question in this case is whether the alleged libel referred to the plaintiff. The article published by the defendant is libelous per se, and if the plaintiff succeeded in proving that it was written of and concerning himself, he was entitled to recover.
I am of opinion that the jury were permitted to consider incompetent evidence in reaching their verdict, which must have been highly prejudicial to the defendant.
The article in question charges that "the London head of a large New York firm of cloth jobbers is reported as the leader of the movement to get together and send to America *Page 389 nearly half a million of British gold with which to push the course of the anti-tariff democracy and its candidate for the Presidency," etc.
The article speaks of this and other information as having "just been cabled over."
In order to establish that the plaintiff was referred to in this publication, it was proved that he was the head of a large New York firm of cloth jobbers, and there was some evidence tending to show that he was the London head of a branch house of his firm in the latter city; also that there were no other firms of New York cloth jobbers who had London branches with London heads.
The inference sought to be drawn from this line of proof was, that the friends and business acquaintances of plaintiff would at once, upon reading the article, recognize the fact that he was charged with raising a corruption fund in England to buy votes in a presidential election about to be held in the United States.
The plaintiff sought to make this slight identification complete by offering in evidence articles published in other papers.
The "Mail and Express," published by defendant, in the city of New York, is an evening paper, and it is charged that the libel was published in it on Monday, November 7th, 1892, the day before election.
On the morning of that day three New York papers published articles on the same general subject involved in the alleged libel purporting to have been received by cable that day from London, in which the plaintiff was referred to by name as at the head of the movement in London to raise a fund to influence the approaching election.
The learned counsel for the plaintiff states that he offered these articles for the purpose of establishing the plaintiff's identity, and to show that the cable dispatches in the morning papers related to the publication in the defendant's paper the next evening, and that the latter was read by citizens in the light of the morning statements, and that the jury could read them in the same way. There was no attempt on the part of *Page 390 the plaintiff to prove that any friend or business acquaintance of the plaintiff had read the morning and evening publications, and thereby spelled out a libel charging plaintiff with a crime, as such evidence would have clearly been incompetent.
In the case of Bourke v. Warren (2 Car. Payne, 307) it was held in the Court of King's Bench, "that, if in a libel, asterisks be put instead of the name of the party libeled, to make it actionable, it is sufficient that the party should be so designated that those who know the plaintiff may understand that he is the person meant; and it is not necessary that all the world should understand it. But if witnesses who state that they understand that the plaintiff is the person, also say that they were enabled so to understand by the persual of another libel, with which the defendant had no concern, their evidence ought to be laid out of the case."
This rule is founded in reason, as it would be most unjust that a defendant in a libel suit should be confronted by independent libels he had not published, and subjected to the peril of submitting them to the jury.
These articles were also received notwithstanding a further objection interposed by the defendant, to the effect that they contained interviews in London with ex-Congressman Ochiltree and Captain Thompson, the London representative of the Equitable Assurance Society. There were thus introduced statements commenting on plaintiff's alleged conduct, calculated to prejudice the jury and intensify the supposed libel published by the defendant.
These statements or interviews contained direct attacks and charges upon plaintiff by name, and must have confused and influenced the jury when considering the article involved in this action.
We have admitted in evidence not only three distinct libels published in newspapers over which defendant had no control, but the libelous statements of two individuals, never printed by the defendant, in which the plaintiff is attacked personally.
This evidence was purely hearsay, and the charge of the *Page 391 trial judge, in substance, that these articles must not be considered by the jury in determining the question whether plaintiff was referred to in the article published by defendant did not cure the error.
The evidence remained in the record, and it needs no argument to show that its effect upon the jury was very damaging to defendant. The trial judge did not charge the jury that they were to disregard this evidence absolutely and treat it as withdrawn, but limited it to the point whether the plaintiff was referred to in the alleged libel.
The learned General Term referred on this point to Holmes v.Moffat (120 N.Y. 159), a case decided by the Second Division of this court. The facts there presented were quite different from those in the case at bar.
Judge PARKER pointed out that the court in the charge referring to the improper evidence, said: "I withdraw it from your consideration, as I do not believe it to be proper or material evidence. * * * I do not think my attention was directed to it with that degree of care that it should have been; and, therefore, it got in." This was a complete withdrawal of the improper evidence from the jury, and the case when in this court was properly decided.
It is assumed that the jury will follow the instructions of the court, and it is the well-settled general rule that the proper remedy is to ask the court to instruct the jury to disregard the evidence. (Marks v. King, 64 N.Y. 628; Platner v.Platner, 78 N.Y. 90.) It is also competent for the court, in its discretion, to strike out the evidence of its own motion. (Gall v. Gall, 114 N.Y. 109.) In the trial of a cause it frequently happens that improper evidence is admitted for the reason that at the moment the attention of the court or counsel is not called to its character. It would be a strict and unreasonable rule if the error could not be cured by motion to strike out, or for instructions that the jury disregard it.
The case at bar presents no such situation.
With the newspaper articles and London interviews stricken out, it is a question of considerable doubt whether, upon the *Page 392 remaining evidence, the jury would find that the alleged libel referred to plaintiff.
It is impossible to say that the verdict was not affected by the incompetent evidence, even if it were not wholly based upon it.
The case of Erben v. Lorillard (19 N.Y. 299) is very much in point.
Judge DENIO, after pointing out that an improper measure of damages had been established based upon evidence of the value of a lease, said: "Where the jury were finally told to disregard what had been proved respecting the lease, they had scarcely any evidence before them upon which to assess damages against the defendant; and it is not surprising that they were unable to dismiss from their minds the consideration that the plaintiff had been wrongfully deprived of a valuable lease, or to avoid making up to him at least a part of his loss."
Judge GROVER said in the same case: "It would be vain to observe the rules prescribed by law to secure an impartial jury, if their minds are to be subjected to the influence of illegal evidence after they are impaneled. It does not follow that impressions thus obtained will have no effect, although the judge directs them to disregard the evidence."
There are other points urged on behalf of the appellant, but I do not deem it necessary to consider them. I cannot agree that the articles published in the morning papers were first proved by defendant in cross-examination of plaintiff. In my opinion this cross-examination bears no such construction. The articles were first offered and read in evidence by plaintiff, and his counsel makes no claim to the contrary.
The judgment and order should be reversed and a new trial ordered, with costs to abide the event.
PARKER, Ch. J., GRAY and O'BRIEN, JJ., concur with MARTIN, J., for affirmance; HAIGHT and VANN, JJ., concur with BARTLETT, J., for reversal.
Judgment affirmed. *Page 393