I dissent. It seems to me that the letter was admissible m evidence for the purpose of showing that the attention -of the defendant had been called to the falsity of the publication and should he treated as in effect a request for retraction.
Irrespective of a request for retraction, I think it the duty of one who has published a libelous statement, which. he subsequently discovers to be false, to right the wrong, so far as he can, without request, and that it is material upon the question of express malice and hence to the amount of damages to show that prior to the commencement of the action he knew that the charge made was unfounded!
As said by Nelson, Ch. J., in Hotchkiss v. Oliphant (2 Hill, 510): “ If the defendant had become satisfied that the charges which he had unwittingly copied were unfounded, common *495honesty and a decent respect for the rights of the injured party called for an unqualified withdrawal. * "" * A libelous publication may be inadvertently admitted into the columns of a newspaper, and the editor chargeable only with mistake or indifference to the truth; but if, when advised of his error, he hesitates to correct it, the case rises to one of premeditated wrong, of settled and determined malignity towards the party injured, which should be dealt with accordingly. There is no longer room for any indulgence towards the act, and the party becomes a fit object for exemplary punishment.”
The judgment and order appealed from should be affirmed, with costs.
Dowling, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.