(dissenting):
I dissent, The only ground for the reversal of this judgment relied upon in the prevailing opinion is the refusal of the court to. charge at defendants’ request that “ where the defendants give evidence tending to prove absence of actual malice, the burden of proving actual malice is on the plaintiff and he must show actual malice by a preponderance of evidence.” If this had been limited as it was in the Carpenter Case (111 App. Div. 266) to the proof of actual malice necessary to base an award of punitive damages it would have been error which should have required a reversal of the judgment. In the request, however; it was not limited to the award of punitive damages. Malice is presumed from the publication of a libel per se, and if this request as presented had been charged it would have necessarily been considered by the jury as applicable to the right of the plaintiff to a verdict. I think for that reason the request, was properly refused.
Judgment and order reversed and new trial ordered, costs to appellant to abide event.