[concurring.) The defendant attempted to show in mitigation of damages that some years prior to the publication of the alleged libel by the defendant an affidavit charging the plaintiff with having circulated stories concerning the chastity of women employed in a certain carpet factory was published in another newspaper in the city of New York. In one instance the attempt was made by asking the plaintiff on cross-examination if a certain affidavit (the affidavit above referred to) did not charge him with having circulated stories concerning the chastity of girls in a carpet factory. This question was ruled out, and the defendant excepted. The exception was not well taken. The evidence sought to be elicited was not the best evidence of the contents of the affidavit, nor was this the proper way of proving that plaintiff had circulated such stories, if that fact were material to the issue, nor did this evidence tend to rebut the presumption of malice on the part of the defendant, for there is nothing to show that defendant was aware of the affidavit at the time it published the libel concerning the plaintiff, (Hatfield v. Lasher, 81 N. Y. 246;) nor was it proper to show that other persons had, before the publication of the libel by the defendant, published and circulated libelous statements concerning the plaintiff. In the first place, the publication alluded to was made some four years prior to that of the defendant, and the fact that such a publication liad been made did not tend to show that the damage suffered by plaintiff by the publication of the libel by the defendant was not necessarily attributable to the act of the defendant; and it is not the law in this state that the defendant in an action for libel can show that the plaintiff’s reputation was so bad that defendant’s libel did not injure it. Id. 250, and cases there cited; Prescott v. Tousey, 50 N. Y. Super. Ct. 12. On the trial the court asked a witness what plaintiff’s reputation in the community in which he, the plaintiff, resided, was, and the witness answered that among laboring men with whom he, the witness, associated, plaintiff’s reputation was bad. This answer was stricken out as not responsive, and defendant excepted. The answer was not responsive, and it was not error for the court to strike it out. But, even if it was error, the error was cured, for immediately afterwards, in answer to another question, the witness said that plaintiff’s general reputation in the community was bad. The defendant called witnesses to show that plaintiff’s general reputation at the time the libel was published by the defendant was bad. The plaintiff, in rebuttal, called witnesses to show that at the time of such publication his general reputation was good. On cross-examination one of these witnesses said that he had heard among laboring people and members of laboring organizations (the plaintiff was prominent in labor organizations) stories derogatory to plaintiff’s character. The witness was then asked what these stories were generally. This question was ruled out, and the defendant excepted. No error was committed. It may be that defendant would have had the right to show what plaintiff’s reputation was, but it is doubtful if it had the right to show what his character was. It is also to be noticed that the question applied to stories affecting the character of the plaintiff, told as well after the publication of the alleged libel as before, while the wit*134ness' on the direct examination had limited his testimony to'the plaintiff’s reputation at the time of the publication of the alleged libel. There were-two other exceptions to rulings of a like kind, but for the reason last stated they were not well taken.
The trial judge charged that there was malice in the publication, and to this the defendant excepted; bút the judge also charged that the evidence would not warrant the jury in finding that there was actual malice towards the plaintiff; that in publishing this article, which was libelous, the law infers malice,—that is, malice in law existed. He then defined actual malice, as distinct from malice in law, to be such malice as attached to an act when committed by a revengeful or spiteful disposition. This was in effect charging tliat, while there was no actual malice shown, still the jury could infer malice from the mere fact of the publication of such a libel. It was not-error so to charge. In this case malice was proved when the publication was proved. Fry v. Bennett, 5 Sandf. 54. This court declared in the case above cited that when a publication was libelous upon its face the law implied that, it was published with a malicious intent, and that malice in such cases is a conclusion of law which the plaintiff is not required to prove, and which the defendant is not allowed to deny. Under the authority of this case it would-have been error for the trial judge to submit the question of the defendant’s malice to the jury, and the fact that the trial judge charged that there was no proof of actual malice is immaterial. What the trial judge meant was. that there' was no proof of malice outside of the malice that the law inferred-from the mere fact of the publication of the libel,-and for this malice in law-the jury might, under the Satnuels Case, award exemplary damages. The, defendant gave no evidence that tended to show that there was in fact no actual malice; but, even if it had given such evidence, the trial judge did not err in charging not that the jury-must, but that it might, give exemplary - damages. The case was one within the rule laid down by Judge Davis in Samuels v. Evening Mail Ass'n, 9 Hun, 288, entitling the plaintiff to exemplary damages. The publication was grossly libelous, was negligently and recklessly made, and made without any regard to the rights of the plaintiff.
The last alleged error-to which oiir attention has been called by counsel for defendant relates to a request of .the defendant to charge that- in fixing the amount of damages to be awarded the plaintiff the-jury must bear in mind that the defendant did not publish any statement that the plaintiff was guilty of. the charges which were said to have been made against him, but merely that he was charged with certain offenses; and they can award only such damages as would result from the publication that Morrison had been charged with the offenses, and not with such damages as might flow from the publication of a statement that Morrison was guilty of the charges. It was not-error for the judge to refuse to charge as requested. The defendant cannot escape responsibility for libeling plaintiff by showing that the libeling was done on the authority of some other individual. Dole v. Lyon, 10 Johns. 447. The judgment and order appealed from are affirmed, with costs.