APPEAL by the defendants, Karl Matthiasen and another, from an order of the Supreme Court, made at the New York
Trial Term and entered in the office of the clerk of the county of New York on the 22d day of December, 1911, granting the plaintiff's motion to set aside as inadequate the verdict of a jury in his favor for six cents, rendered after a trial at the New York Trial Term.
Wilbur F. Earp [Franz Neilson with him on the brief], for the appellants.
Raymond Ballantine, for the respondent.
This action is brought to recover general damages alleged to have been sustained by plaintiff in his profession as an attorney and counselor at law by the publication of five articles in a weekly Danish newspaper known asNordlyset, of which the defendant Matthiasen was the proprietor, and defendant Strandvold was the editor. The plaintiff was admitted to practice in the courts of this State in 1904, and in the Federal courts as well. The newspaper had a circulation of about 2,000 copies, and it was published in the borough of Brooklyn, and circulated in New York and throughout the United States and Canada, and to some extent in Denmark. The articles, with the exception of one which was withdrawn from the jury, related to and commented on and constituted in part a reply to an article consisting of an interview which the plaintiff, at the request of one Holm, who owned and published two newspapers in Danish, gave for publication concerning an action which he had brought for one Axel Holm to recover damages for personal injuries and concerning himself, and comments thereon by the newspaper. The interview, with comments, was first published in the Norwegian-American, and it was rewritten and together with a photograph of the plaintiff which he furnished to the proprietor, published in the Danish-American on the 23d day of February, 1910. This article purported to give the nature and history of the action and a brief sketch of the plaintiff's career, setting forth his theory of his success, and his views concerning politics and certain public offices, and it was highly commendatory of him as a citizen and laudatory of him professionally,
and of his ability as displayed in winning $20,000 for his client Holm; and it plainly conveyed the impression that he became interested in the case through a spirit of charity and willingly sacrificed his valuable time gratuitously to help a fellow-countryman. The article closed with a letter from the client purporting to extend thanks to those who had assisted him, including his special guardian, who had raised funds for him, and his doctor and editor, and purported to state that the plaintiff as his attorney 'has done able work for me.' The letter of thanks was designed to give public recognition to those who had assisted the client, but when signed by the client it contained no reference to his attorney, whom he subsequently stated he considered well paid for the services rendered, and that sentence was added at the newspaper offices.
The first alleged libelous article was published on the 10th of March, 1910, and it set forth a letter addressed to Nordlyset from the father of the plaintiff's client, challenging the correctness of many of the statements in the article published in the Danish-American, and setting forth that the verdict had been reduced in some way unknown to him, or to his son, to $17,500, and that $5,914 of the sum received in cash was deducted as expenses and attorneys' fees, leaving a balance of only $2,836 received by the client in cash, and the remainder was to be paid in ten annual installments, for each of which the client received a note and asserting that the articles were written as a self-advertisement for plaintiff and the special guardian. It is stated in this article that on receiving this letter Nordlyset investigated the matter and learned from the plaintiff's client that his father's letter was true, and that the letter of thanks in the other paper contained no reference to the plaintiff; and from the special guardian it was learned that the $2,500 was deducted from the verdict by a compromise to prevent an appeal and delay, and that one-half of the balance was paid in cash and the other half was to be paid in equal annual installments, and he conceded that he had collected contributions for the plaintiff's client to the extent of about $250, part of which he still retained. This article was not libelous per se. The reduction by $2,500 is fully explained in the very article of which complaint is made. The plaintiff, by submitting to
the interview, invited public comment and criticism on his utterances and on his conduct towards his client. There was no reflection with respect to his professional ability, but there was perhaps an implied criticism of the basis of the settlement with his client. There was, however, no misstatement of fact, and the comment and criticism were apparently fair and honest, and made to disprove the assertions contained in the former publication. The articles were apparently written to advertise commendably the plaintiff and the special guardian, and any reader would infer that it was self-advertising, although the plaintiff according to his testimony did not know that his entire interview was to be published. The defendants had no malice towards the plaintiff, and in fact did not know him at all. The complaint concerning the second article was withdrawn. The third and fourth articles were published on April 21, 1910, in the same issue but in different columns. In the first of these reference is made to the newspaper controversy and the Axel Holm case, and to the fact that the award of such a large amount made him a well-known man, and attracted considerable attention both here and in Denmark. The material part of this article is as follows: 'From the moment they noticed that there was money in Axel Holm's case the 'charity' was awakened in his brave fellow-men. That they allowed themselves to be paid for this charity in ringing coin has less to do with the case, the consciousness that at least Axel Holm did not go home entirely plundered and fleeced was sufficient for them.
'Out of the large damages of $20,000 awarded him Axel Holm went home with about $1,500--we say it and inscribe it--fifteen hundred dollars--that is all that has been left him.
'Up to the very last moment they were after him, yes, even his own attorney, who, though he had made several thousand dollars on him, did not blush--24 hours before his departure--on behalf of Axel Holm's uncle to institute an arrest whereby they gave him the choice between paying 123 dollars or ...