The plaintiff was the editor of the Financial World, a weekly periodical having a circulation of 12,000, published in New York by the Guenther Publishing Company, of which he was the president and treasurer and the owner of a majority of its capital stock; and he brought this action to recover damages for an alleged libel in the September, 1911, issue of the Adventure, a monthly periodical published by the defendant.
We are of opinion that it was error to receive a typewritten record on appeal in Kellogg v. United States to impeach the testimony given by the witness Eberman, for the certified case on appeal was not competent proof of the testimony given by the witness on that trial to impeach his testimony given on the trial of the issues herein.
We are also of opinion that it was error to receive the testimony given by the witness Olcott to the effect that an investigation which he made as special district attorney did not disclose any evidence that the plaintiff was interested in the business of E. S. Dean & Co. other than in handling its advertising, for the reason that it consisted merely of his opinion as to whether a thorough investigation conducted by him into the affairs of E. S. Dean & Co., consisting of the examination of the books of the company and interviewing witnesses and conducting a prosecution against one of the members of the company, showed that the plaintiff was in any manner connected with the company otherwise than in handling its advertising.
The court ruled and instructed the jury that the charge that the plaintiff was a blackmailer was libelous. These rulings *727are sustained by the decision of this court in Town Topics Pub. Co. v. Collier (114 App. Div. 191). Without, so far as the record shows, the point having been taken or claim made by counsel for respondent, the court announced when this question first arose that the only blackmail he knew or would recognize was that defined in the Penal Law of this State,, and that position was maintained by the court throughout the trial. The court read section 856 of the Penal Law to the jury, and ruled that the defense of justification of this charge required proof of blackmail as defined in that section, which relates to a threat in writing, and charged, as matter of law, that the evidence was insufficient to establish this defense. There was no evidence tending to show that the plaintiff had attempted to blackmail advertisers by written threats, but we are of opinion that the court erred in so limiting the proof of justification. It can not be said, as matter of law, that the libel charged the plaintiff with having committed the crime of blackmail. The word “ blackmail ” has a broader meaning. It is defined in the Century Dictionary as “ Extortion in any mode by means of intimidation, as the extortion of money by threats of accusation or exposure, or of unfavorable criticism in the press.” Blackmail has frequently been construed by the courts as synonymous with extortion. (Edsall v. Brooks, 17 Abb. Pr. 221, 226; People v. Davis, 156 App. Div. 279; Matter of Lenney, 169 id. 509; Mitchell v. Sharon, 51 Fed. Rep. 424. See, also, Holmes v. Jones, 50 Hun, 345; Hess v. Sparks, 44 Kan. 465.) We are also of opinion that the evidence presented a question of fact for the jury as to whether the appellant justified in the colloquial sense in which the word is ordinarily used and understood.
It follows, therefore, that the judgment and order should be reversed and a new trial' granted, with costs to appellant to abide the event.
Clarke, Dowling and Smith, JJ., concurred; Laughlin, J., dissented.