Opinion
February 19, 1940.
Present — Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ.
In an action to recover damages for alleged libel, judgment in favor of plaintiff against defendant American Newspapers, Inc., entered upon the verdict of a jury, unanimously affirmed, with costs. Appeal by defendant from an order denying its motion to set aside the verdict and for a new trial dismissed. No such order appears in the record. In our opinion, the judgment is not vulnerable to successful attack by appellant upon any ground urged. The charge at folios 1343-1345, in response to plaintiff's request, to the effect that if the jury should find that plaintiff was entitled to punitive damages, it might consider, in determining whether or not the defendant had been malicious, that the defendant had repeated the alleged libel in its answer; and that if the jury found that the defendant maliciously repeated the alleged libel in the answer, it could consider that as a justification for the award of punitive damages, was substantially correct. ( Willard v. Press Publishing Co., 52 App. Div. 448, 449-450; Walling v. Commercial Advertiser Association, 173 id. 491.) Its validity was in no respect impaired, nor could the jury's understanding of it have been affected, by the court's statement in the subsequent discussion (fol. 1345), in effect, that such repetition in the answer might be considered on the question of malice, as that observation was obviously understood and intended to refer to and be an adoption of the correct statement of the law charged before the colloquy. The same is true of the court's refusal to charge as requested by defendant at folios 1351-1352; for the law in this phase previously had been charged correctly. ( Mullins v. Siegel-Cooper Co., 183 N.Y. 129, 140; Katz v. Travelers Indemnity Co. of Hartford, 233 App. Div. 369, 370.)