Opinion
October, 1923.
Judgment and order reversed upon the law and the facts, and new trial granted, with costs to abide the event. The article complained of is capable of but one construction, and is libelous per se. The affidavit of Mrs. Kraft, set out in the answer, constituted no defense to the action. The only question which should have been submitted to the jury was the amount of damages to be awarded. The court erred in charging that there was no question of actual malice in the case, and that punitive damages could not be given. This should have been left to the jury. ( Crane v. Bennett, 177 N.Y. 106.) Kelly, P.J., Rich, Jaycox, Manning and Young, JJ., concur.