Samuel Samuels, Respondent, v. The Evening Mail Association, Appellant

Samuel Samuels, Respondent, v. The Evening Mail Association, Appellant. (Submitted December 24, 1872; decided January 21, 1873.) An answer in an action for libel, denying that the article complained of was published by or with the knowledge, consent, assent or permission of defendant, is not frivolous. (Folger, J., dissenting.) This was an action for libel. The complaint charged defendant with publishing in the Rew York Evening Mail, a paper of which it was the publisher and proprietor, an article defamatory to plaintiff. The answer admitted the proprietorship of the paper, but denied that the article complained of was published with its knowledge, consent, assent or permission, and also denied that any person employed by defendant had any right or authority from it to publish the article. Plaintiff moved for judgment on account of the frivolousness of the answer, which motion was granted. Held, error; that it was not clear that the answer did not contain a sufficient denial of the publication to make an issue for a jury. Henry Anderson for the appellant. Robert Sewell for the respondent. [MAJORITY — Peckham, J.,] Peckham, J., reads for reversal of order and denial of motion. Church, Ch. J., Allen, Rapadlo and Andrews, JJ., concur; Grover, J., concurs in result. Eolger, J., dissents. Order reversed and motion for judgment denied.