Robinson v. Evening Post Publishing Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, John Robinson, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of December, 1898, upon the decision of the court rendered after a trial at the New York Special Term, as overrules the demurrer interposed by the plaintiff to the third defense set up in the defendant’s answer.
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Appeal by the plaintiff, John Robinson, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of December, 1898, upon the decision of the court rendered after a trial at the New York Special Term, as overrules the demurrer interposed by the plaintiff to the third defense set up in the defendant’s answer. The action is to recover damages for a libel alleged to have been published by the defendant, which, in brief, charged that the plaintiff had been sold by his wife for twenty-five…
1Opinion of the Court
O’Brien, J.:
The facts which may be proved in mitigation of damages are stated by text writers to be “ any circumstances which tend to disprove malice, and do not tend to prove the truth of the charge; ”' or, differently expressed, “ mitigating circumstances are those which disprove malice.” It is well nigh impossible to reconcile the authorities, for though cases can be found in support of the rule thus broadly stated (Bush v. Prosser, 11 N. Y. 347; Gorton v. Keeler, 51 Barb. 481), there are others which apparently- qualify it. Thus, Witcher v. Jones (17 N. Y. Supp. 491) and Cameron v.…
2Cases cited5 opinions
- Bush v. . ProsserNew York Court of Appeals · 1854
- Morey v. Morning Journal Ass'nNew York Court of Appeals · 1890
- Witcher v. JonesNew York Court of Common Pleas · 1892
- Gorton v. KeelerNew York Supreme Court · 1868
- Van Alstyne v. Rochester Printing Co.Appellate Division of the Supreme Court of the State of New York · 1898
3Cited by2 opinions
- Hearst v. New Yorker Staats ZeitungNew York Supreme Court · 1911
- Morse v. Press Publishing Co.Appellate Division of the Supreme Court of the State of New York · 1901