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Tierney v. Ruppert

Supreme Court of New York, Appellate Division

May 9, 1912

THOMAS P. TIERNEY, Respondent,
v.
JACOB RUPPERT, Appellant.

APPEAL by the defendant, Jacob Ruppert, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of July, 1911, upon the verdict of a jury for $1,000, and also from an order entered in said clerk's office on the 11th day of July, 1911, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

Ashbel P. Fitch, for the appellant.

Thomas A. McKennell [Alfred H. Appell with him on the brief], for the respondent.

WOODWARD, J.:

This action was brought to recover damages for an alleged libel arising from the publication by the defendant of a notice of sale of certain chattels covered by a chattel mortgage given by the plaintiff and his wife to the defendant to secure the payment of the sum of $212.

It appears the plaintiff was the owner of a saloon, and the defendant the proprietor of a brewery; that the defendant had assisted the plaintiff and furnished him a certain icebox and bar apparatus at the agreed price of $212, and that the plaintiff,

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to secure the payment of this sum, gave the defendant his promissory note and the chattel mortgage on the articles mentioned.

Subsequently the plaintiff called at the office of one Krause, the defendant's agent in New Rochelle, N.Y. , and paid him the sum of $100, which was the original cost of the icebox.

The plaintiff contends that, on this occasion, it was agreed between him and the agent that the defendant should take back the balance of the personal property, other than the icebox, in settlement of the defendant's demand against the plaintiff. Krause, the defendant's agent, denies that such an arrangement was made.

The note and chattel mortgage were not surrendered to the plaintiff, and the defendant claims that a balance of $112 remained unpaid on the note and chattel mortgage. Subsequently the defendant proceeded to enforce the chattel mortgage in question, and to that end advertised the property for sale, posting the usual notices of sale, which recited the alleged indebtedness and the giving of the mortgage ' upon which default has been made.'

The plaintiff thereupon brought this action, charging that the words quoted constituted a libel upon him, and alleging specific damages to his business and credit by the publication. The jury awarded the plaintiff a verdict of $1,000. From the judgment entered upon this verdict the defendant takes this appeal.

Upon the trial of this action the learned justice presiding charged the jury that there was nothing in the evidence to show that the defendant published the notice with malicious intent, so that their verdict must have been predicated upon a right to recover, irrespective of any question of malice or good faith on the part of the defendant.

We thus have presented for our consideration the question whether a recovery is justified ...


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