George Kershaw, by Benjamin Kershaw, His Guardian ad Litem, Respondent, v. Charles D. Steurer, Appellant

George Kershaw, by Benjamin Kershaw, His Guardian ad Litem, Respondent, v. Charles D. Steurer, Appellant. First Department, May 20, 1910. Evidence — libel—motive and good faith — when information received from others not hearsay. In an action to recover damages for a libel charging the plaintiff, a messenger boy, with collecting money on “fake” messages, it is error to refuse to allow the defendant to show what the reporter of another newspaper which had published a similar account, told the defendant in regard to the occurrence and entries made on a police blotter inspected by the defendant. A defendant, as a protection against punitive damages, is entitled to show that he published the article without malice and in an honest belief that it was true. The evidence aforesaid is not hearsay upon that issue. It is, however, hearsay if offered to establish justification. Appeal by the defendant, Charles D. Steurer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of October, 1909, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 22d day of October, 1909, denying the defendant’s motion for a. new trial made upon the minutes. Arthur J.' Westermayr, for the appellant. Samuel P. Goldman, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Appeal by defendant from a judgment for damages for a libel. The defendant is the owner and publisher of a newspaper in the city of New York. He published concerning the plaintiff a libel-" ous article in which the latter, a telegraph messenger boy, was charged with having delivered “fake” messages to Italians.and col-, lecting therefor fifty cents apiece. It also charged that he had confessed to a policeman, and had said that within two weeks he had delivered and collected upon about 300 such messages. The defendant attempted to justify, but failed,. as the jury must have found in order to render a verdict for plaintiff. The defendant also offered evidence in mitigation of damages seeking to show that' he acted upon information, that before the publication he made an investigation as to the truth of the charge, and that, from the information thus received, he believed that the story Was true. To this end he called the editor of the paper, who testified that he first received information of the occurrence from the New York Sun, published on the day preceding the publication in defendant’s newspaper, and immediately proceeded to investigate the matter thoroughly; that he called up a reporter on the Sun, whom he knew well, and had a conversation with him ; that he went to the police station and spoke to the sergeant, and read the police blotter, and then sent out a reporter to try to interview some of the Italians. The court refused to permit the editor to testify as to what the Sun reporter said to him,'or as to what was contained in the police blotter. This, we think, was error. The defendant, as a protection against punitive damages, was entitled to show that in publishing the article ■lie acted without malice, in good faith and in the honest belief that it was true. To show this he should have been permitted to give evidence not only that lie investigated as to the truth of the charge, but also what that investigation disclosed. It would then be for the jury to say whether or not the information thus obtained was sufficient to justify a reasonable man in believing the story to be true. Such evidence is not properly speaking hearsay evidence upon the point to which it was directed, viz., the defendant’s belief in the truth of the article, and the sufficiency of the grounds for such belief. Of course such evidence would be hearsay as bearing upon a plea of justification and its receipt would call for an instruction to the jury that anything the defendant might have been told could not be considered as proof of the truth of the libel. The verdict in the present case suggests that some part of it was awarded by way of exemplary damages, and hence that the excluded testimony might, if admitted, have affected the verdict. The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event. Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred. Judgment and order reversed and new trial ordered, with costs to appellant to abide event.