The important questions requiring consideration on this appeal will be discussed separately. First. The order expressly shows that the trial justice granted a new trial in the exercise of his discretion as well as upon the exceptions, and because the verdict was deemed inadequate. It does not and cannot appear, therefore, that the motion was granted solely upon exceptions or errors of law, or a misunderstanding of -the effect of the evidence, and, according to *473precedents in this court, the order should be affirmed. (Connor v. Mayor, 28 App. Div. 186; Ludeman v. Third Ave. R. R. Co., 30 id. 522; Mooney v. Press Pub. Co., 58 id. 613.) Moreover, owing to the long colloquy between counsel and the court during the summing up, the learned trial judge may have realized, better than we can from reading the record, that the jury did not understand the propositions of law intended to be laid down for their guidance on the question of damages. Owing to the fact that the court made inquiries of the counsel during the summing up, which invited counsel to interrupt the court at other times, and to the fact that documents and series of requests to charge were read, discussed, modified and charged, it is extremely doubtful whether the jury fully comprehended their duty in the premises. There was, therefore, sufficient ground to warrant the court in exercising its discretion favorably to the plaintiff by awarding a new trial.
Second. There is no difference in principle between reducing a verdict for excessive damages and setting aside a verdict because the damages are inadequate. (McDonald v. Walter, 40 N. Y. 551; Morrissey v. Westchester Elec. R. Co., 30 App. Div. 424; Cowles v. Watson, 14 Hun, 41.) Section 999 of the Code of Civil Procedure expressly authorizes the trial court, where, as here, a motion is made for that purpose upon the minutes, to set aside the verdict upon the ground that the damages are inadequate. Some of the decisions seem to intimate, if not hold, that the authority of the court to set aside a verdict on the ground that the damages are excessive is greater than its authority to vacate the verdict for inadequacy of damages, but it will be found that they are based upon the provisions of section 264 of the Code of Procedure which, unlike section 999, Code of Civil Procedure, contained no express authority to set aside a verdict for insufficiency of damages. In this case I think the evidence .indicates that the plaintiff sustained substantial damages and the verdict for six cents is against the weight of the evidence and was properly set aside. These articles were libelous per se, and, beyond question, much that was printed of a libelous nature was not privileged. As the case stood before the jury, these extremely damaging charges were all false and the plaintiff was entirely innocent. There seems to have been no ground at all for making a charge against him. They appear to have resulted *474from a jealous husband employing irresponsible detectives who had no regard for truth or veracity or for the character and reputation of citizens. The defendant understood that the plaintiff denied the charges, and if it had interviewed him it might have been convinced of their falsity. Without doing so it published them at its peril. It may well be that the plaintiff exaggerated the effect of these publications upon him mentally, but that is no justification for his not receiving a verdict in an amount-which will vindicate his character. He was entitled to compensatory damages at least, and it is unreasonable, I think, to contend that a jury of fair intelligent citizens would value a good reputation so lightly as to believe it is not injured by a publication of such charges. There is nothing in the testimony of the plaintiff or in this record to explain the amount of the verdict except on the theory that the jury became confused on the rule of damages, as well they may have, owing to the manner in which that question was submitted to them.
Third. Assuming that the publication of the filing and contents of the divorce petition would be privileged as a report of a judicial proceeding, I think that, as a matter of law, the whole of this publication was not privileged for the reason that the privilege is limited to “ a fair and true report ” of the judicial proceeding (Code Civ. Proc. §§ 1907, 1908; Hart v. Sun Printing & Pub. Assn., 79 Hun, 358; Bissell v. Press Pub. Co., 62 id. 551; Moore v. M. N. Bank, 123 N. Y. 424; Sanford v. Bennett, 24 id. 20; Salisbury v. Union & Advertiser Co., 45 Hun, 120; Cooley Const. Lim. [6th ed.] 550 and note), and this publication was not confined to a fair and true report of the filing and contents of the divorce petition, and it was error for the court to permit the jury to find that it was. Of course, where the article is privileged, the court should apply a liberal construction in determining what part is and what part is not privileged (Moore v. M. N. Bank, supra; Youmans v. Smith, 153 N. Y. 214), but even that rule will not avail in this case. The facts were not detailed in the petition and it contained no reference to the affidavits. If the publications had been confined to the contents of the petition they would not have been so serious. People would then understand that it was merely an unverified charge made by a husband against his wife designating the plaintiff as the corespondent — an assertion, perhaps, as it now appears, wholly on suspicion. *475The publications, however, conveyed the impression that the charge was true in that it was supported by the affidavits of eye-witnesses, and reaffirmed by the husband and his attorney after due deliberation. The facts which the law permits to be published under the protection of this privilege are those which appear in the judicial proceeding itself. The greater part of these articles •—• the sensational and most damaging part — consists of gossip, alleged to have been vouched for by the attorney for Knowlden, concerning conduct of and the relations between the plaintiff and Mrs. Knowlden, and his giving her presents, none of which was set forth in the divorce petition; and the publication of these statements was not privileged even though the contents and filing of the petition for a divorce was. (Cases supra; Storey v. Wallace, 60 Ill. 51; McDermott v. Evening Journal, 43 N. J. Law, 488; Ludwig v. Cramer, 53 Wis. 193.) Hence it conclusively appears that the whole of the article was not an account of a judicial proceeding, and, therefore, the whole was not privileged.
Fourth. The articles being libelous per se, privilege is a defense to be pleaded and proved, and upon the defendant rested the burden of showing that the publication was privileged. (Kimber v. Press Assn., L. R. [1898] 1 Q. B. 65; Moore v. M. N. Bank, supra; Beiser v. Scripps-McRae Pub. Co., 68 S. W. Rep. 457, 459.) The plaintiff in the divorce action was undoubtedly privileged in making the charges against Stuart under a rule of public policy which requires that litigants and their counsel shall be privileged in stating the facts material and relevant or pertinent to any action or proceeding in court. (Marsh v. Ellsworth, 50 N. Y. 309; Moore v. M. N. Bank, supra; Youmans v. Smith, supra; Jones v. Brownlee, 53 L. R. A. [Mo.] 445; Townsh. Sland. & Lib. [4th ed.] § 221.) Before the enactment of chapter 130 of the Laws of 1854, it was the rule in this State, following what was then supposed to be the common-law rule in England, that the privilege under the common law of publishing judicial proceedings only extended to contested proceedings in open court and not to preliminary em parte proceedings. (Stanley v. Webb, 4 Sandf. 21; Ackerman v. Jones, 37 N. Y. Super. Ct. 42.) The statutory privilege does not extend to headlines (Code Civ. Proc. § 1908), which are no part of the report of a judicial proceeding, but merely comments thereon, and they *476are only privileged if they are a fair index of a truthful report. (Lawyers’ Co-op. Pub. Co. v. West Pub. Co., 32 App. Div. 585; Hart v. Sun Printing & Pub. Assn., supra.) But the rule is now well settled, under the statute of 1854 and section 1907' of the Code of Civil Procedure, which is a re-enactment thereof without material change (See note to Throop’s Code of 1880) in accordance with what has since been declared to be the common law of England, that the privilege extends to all public judicial proceedings and applications to magistrates, judges or courts for judicial action ex parte or on notice. (Ackerman v. Jones, supra; Salisbury v. Union & Advertiser Co., supra; Bissell v. Press Pub. Co., supra; Usill v. Hales, 3 L. R. Com. Pl. Div. 319, 324, 329; Metcalf v. Times Pub. Co., 40 Atl. Rep. [R. I.] 864; Odgers Lib. & Sland. [3d ed.] 279; Townsh. Sland. & Lib. [4th ed.] § 231 et seq.) This privilege is founded upon grounds of public policy for the purpose of securing and insuring the integrity of the bench and preserving public confidence in those administering justice which it was thought might be jeopardized by secret proceedings or hearings, and it would seem to follow logically that the privilege does not attach until an application is made to a magistrate, judge or court for some judicial action, and this is the rule established by the authorities. (Newell Sland. & Lib. [2d ed.] 471; Cowley v. Pulsifer, 137 Mass. 392; Barber v. St. Louis Dispatch Co., 3 Mo. App. 377; Usill v. Hales, supra; Metcalf v. Times Pub. Co., supra; Kimber v. Press Assn., supra; Sutton v. A. H. Belo & Co., 64 S. W. Rep. [Texas] 686; 18 Am. & Eng. Ency. of Law [2d ed.], 1044; Park v. Free Press Co., 72 Mich. 560, 568; Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548. See, also, Sanford v. Bennett, supra; Billet v. Times-Democrat Pub. Co., 32 So. Rep. [La.] 17.) Without unduly lengthening this opinion, by a discussion of the authorities or quotations from them, it may be stated that the reason for this limitation is that the public are not concerned in the preliminary proceedings formulating claims, causes of action, charges or defenses for presentation for judicial action ; that the public are not concerned in the private controversies between citizens, but only in the action of the judicial officers or tribunals thereon, and that until the judicial action is invoked the proceeding or action may be abandoned or discontinued by the par*477ties without ever bringing the same to the attention of a magistrate, judge or judicial tribunal. If Knowlden had been overheard to charge his wife with improper relations with Stuart, of course no person repeating or publishing the charge could assert a claim of privilege. When such charge is made in a complaint which may never be served or brought to the attention of the court for an adjudication and may be withdrawn at will, is its publication by the press to be deemed privileged and the publisher relieved of actual damages to an innocent party injured or ruined by the publication of a groundless defamatory charge ? Clearly such publication would not be privileged under the common law which gave no greater rights in this regard to the press than to an individual. (Cooley Const. Lim. [6th ed.] 556; 18 Am. & Eng. Ency. of Law [2d ed.], 1051; Park v. Free Press Co., supra.) Assuming, without deciding, that the statutory and Code provisions cited were designed to confer upon reporters, editors and proprietors of newspapers greater privileges in this regard than are enjoyed by others and that such legislation is valid, still, since these provisions of statutory law take away causes of action that existed at common law, they cannot be extended by construction. Such a privilege depending upon the statute, which is in derogation of the common law, must be fairly within the letter of the law or warrant therefor does not exist.
Liberty of speech and of the press is guaranteed by the supreme law of the land and will be zealously guarded, preserved and enforced by the courts. The provisions of the Federal and State Constitutions (U. S. Const. 1st amendt.; State Const, art. 1, § 8) were designed to secure rights of the people and of the press for the public good, and they do not license the utterance of false, slanderous or libelous matter. Individuals are free to talk and the press is at liberty to publish, and neither may be restrained by injunction, but they are answerable for the abuse of this privilege in an action for slander or libel under the common law, except where by that law or by statute, enacted in the interest of public policy, the publication is privileged and deemed for the general good, even though it works a private injury.
The publication having been made in this State undoubtedly the defendant is entitled to the benefit of any privilege extended by the common law or by our statutes ; but as has been seen the only privi*478lege at common law at all applicable is that accorded to the publication of “ a fair and true” report of a public judicial proceeding ; and the statutory privilege conferred by section 1907 of the Code of Civil Procedure, so far as it relates to judical proceedings, likewise confines the privilege to judicial proceedings which are both public and official. (Sanford v. Bennett, supra; Salisbury v. Union & Advertiser Co., supra; Falkards Sland. & Lib. [5th ed.] 222; McCabe v. Cauldwell, 18 Abb. Pr. 377.) No statute of New Jersey regulating proceedings in divorce actions or declaring the rights of the public to an inspection of the records therein has been proved. We must, therefore, assume that the common law prevails. At common law the pleadings or papers filed in an action or proceeding were not open to public inspection especially should this be so in actions for divorce — but only to the inspection of those having an interest therein or right of access thereto, and this was not permitted for the purpose of publication or to gratify private spite or promote public scandal. (The King v. Mayor of Maidstone, 6 Dowl. & R. 334; Matter of Caswell’s Request, 18 R. I. 835; Schmedding v. May, 85 Mich. 1, 5, 6; Burton v. Reynolds, 110 id. 354; Matter of McLean, Fed. Cas. No. 8,877; Daly v. Dimock, 55 Conn. 579; Buck & Spencer v. Collins, 51 Ga. 391; Cormack v. Wolcott, 37 Kans. 391; State ex rel. Cole v. Rachac, 37 Minn. 372; Belt v. Prince George’s County Abstract Co., 73 Md. 291.) The cases cited and many others show the distinction between the proceedings in open court before á magistrate, judge or judicial tribunal cmd the papers in the action or proceeding' which merely concern the parties directly interested, excejit so far as the validity of a judgment or other decree or process affecting property rights in which third parties may be interested may depend thereon.
Whether the privilege extends to the publication of pleadings merely filed or served in this State, where no action can be taken thereon by the court without an application by one or both of the parties, may not be free from doubt and need not be decided. Truth is always a complete defense and statements which are true may be freely published. But the privilege which affords immunity against falsity of the matter published being lirnited to reports of judicial proceedings, has a newspaper a license to publish the contents of a complaint or answer prepared, served or filed *479before judicial action has been in any manner invoked, when the parties or their attorneys or any individual would not have such right ? (See Park v. Free Press Co., 72 Mich. 560, 569; Cooley Const. Lim. [6th ed.] 550 and note; Metcalf v. Times Pub. Co., 40 Atl. Rep. [R. I.] 864; Schmedding v. May, supra.)
In Schmedding v. Map (supra), where a„ reporter was refused access to papery filed in an action, the court say: “ If the object be to obtain and publish the charges set forth in a bill for divorce, certainly the public are not interested, and their interests would undoubtedly be well subserved if the contents thereof were never published. These suits, involving private transactions, may never come to trial or hearing. The troubles may be settled, and the charges withdrawn. In such cases there can be no objection to the papers remaining under the control of the court and the parties until such time as they choose to make them public by proceedings in open court or otherwise.”
In Park v. Free Press Co. (supra) the court say : “ There is no rule of law which authorizes any but the parties interested to handle the files or publish the contents of their matters in litigation. The parties, and none but the parties, control them. One of the reasons why parties are privileged from suit for accusations made in their pleadings is that the pleadings are addressed to courts where the facts can be fairly tried, and to no other readers. If pleadings and other documents can be published to the world by any one who gets access to them, no more effectual way of doing malicious mischief with impunity could be devised than filing papers containing false and scurrilous charges, and getting those printed as news. The public have no rights to any information on private suits till they come up for public hearing or action in open court; and, when any publication is made involving such matters, they possess no privilege, and the publication must rest on either non-libelous character or truth to defend it.”
In Metcalf v. Times Pub. Co. (supra) the court, considering this question, say: “ The rule as thus stated seems now to be settled as the law both in England and in this country, and it makes a clear line of distinction between publications which are lawful and those which are not. It gives no license to publish libelous matter simply because it is found in the files of a court. As a publisher of news *480and items of public importance the press should have the freest scope, but as a scandal monger it should be held to the most rigid limitation. If a man has not the right to go .around to tell of charges made by one against another, much less should a newspaper have the right to spread it broadcast and in enduring form. It is necessary to the ends of justice that a party should be allowed to make his charges against another, for adjudication, even though they may be of a libelous character, and as such they are privileged, the injured party having a remedy for malicious prosecution when they are made maliciously or without probable cause. But the right of a party to make charges gives no right to others to spread them.” Legislation was deemed necessary in this State to extend the privilege to ex parte judicial proceedings, it being then supposed that the publication of such proceedings was not privileged at common law. Beyond a doubt the Legislature has determined that the public are entitled to know what applications are made to our judges, magistrates and courts for judicial action, the proceedings thereon and how the same are decided, but has it declared that parties to a litigation, their attorneys or others may repeat the charges made in pleadings or procure their publication to the world through the medium of a newspaper in advance of any application for judicial action and at a time when the proceedings are under the control of the parties and may be withdrawn or discontinued and, no matter how false the charges may be if published without malice, secure immunity on the ground that the privilege which applied to the party in stating the charges in the pleading or which would apply when the matter is presented for judicial action, extends to such publication % Or is it not rather the rule that until the proceedings are brought to the attention of the court, judge or magistrate, or have so far advanced that the parties have,lost absolute control over them and they must come up for judicial action, there is no privilege either at common law or under our statute as it now exists and it must be held that the dissemination of charges contained in the pleadings, which then concern only the parties to the litigation, through the medium of the press, is not privileged ? Hay any one repeat or publish such charges with impunity, regardless of their being true or false, and furnish a copy of a complaint in divorce reflecting on the character of an innocent man or woman to the press for publication *481and may it be published and commented on as privileged regardless of its truth or falsity, merely because the complaint has been framed, served or filed, even though the action has not been noticed for trial or placed on a calendar, and no application has been made therein to the court, and may never be, for preliminary, provisional or other relief, and the suit may be compromised without the intervention of the court? (See Cowley v. Pulsifer, supra; Sanford v. Bennett, supra.)
These are grave questions, not free from doubt, and they should not be decided until necessarily presented. Although the charge of the court that the publication of the filing and contents of the divorce petition was privileged as a judicial proceeding was excepted to, yet the New Jersey statutes under which the petition was filed, and regulating the practice thereon, were not introduced in evidence; and we cannot take judicial notice of them. In form the petition is addressed to the court. Perhaps the filing of it constitutes an application to the court and that thereupon a subpoena, summons or other writ is either in fact or in theory issued by the court; and if so, the mere filing may constitute a judicial proceeding. Therefore the question should not and cannot be authoritatively determined on this appeal.
It follows, however, for reasons already assigned, that the order should be affirmed, with costs.
Pattebsoh and Hatch, JJ., concurred; Yah Bbuht, P. J., dissented.