De Severinus v. New York Evening Journal Publishing Co.

In an action brought by this plaintiff upon a similar publication by the Press Publishing Company, we decided that á verdict for $5,000 should be reinstated despite a reduction by the trial justice.; (De Severinus v. Press Publishing Co., 147 App. Div. 161.) It was admitted in that action, as in the action at bar,- that the circulation of the newspaper was very large. As there are no circumstances of material difference which relate to the damages, we should not hold this verdict of $3,000 excessive.

The fact that the article was published first by the defendant in the case cited supra is not admissible in mitigation. There is an exception to this rule which, however., is not presented in the case at bar. In a case of libel, if the defendant published *343the article as hearsay with a statement of the source of its information, proof thereof, and that the publisher at the time of publication believed the article to be true, is admissible in mitigation to show freedom from malice. (See Newell Sland. & Lib. [2d ed.] 893, 894; Odgers Lib. & Sland. 359.)

The judgment and order must be affirmed, with costs.

Jenks, P. J., Burr, Thomas, Carr and Woodward, JJ., concurred.

Judgment and order affirmed, with costs.