N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J.

in reduction of damages which the plaintiff claimed he suffered in his business. (Sanderson v. Caldwell, 45 N. Y. 398; Code Civ. Pro. § 536.)

Matthew Hale for respondent. The trial court properly excluded the evidence offered by defendant to show that the bill rendered by Holmes & Co. for their services was exorbitant and unjust. (Palmer v. Haight, 2 Barb. 210; Hamilton v. Eno, 81 N. Y. 117; Cooper v. Barber, 24 Wend. 107; Stiles v. Comstock, 9 How. Pr. 48; Hopkins v. Smith, 3 Barb. 599; Odgers on Libel [1st Am. ed.], 305; Townshend on Sland. & Lib. § 407; Andrews v. Vanduzer, 11 Johns. 38; Root v. King, 7 Cow. 613; 4 Wend. 114; Hatfield v. Lasher, 81 N. Y. 246; Fountain v. West, 23 Ia. 9; I. J. Co. v. Pough, 33 N. E. Rep. 991; Huff v. Bennett, 6 N. Y. 337, 339; Parkhurst v. Ketchum, 6 Allen, 406; Peterson v. Morgan, 116 Mass. 350; Ross v. Lapham, 14 id. 275; Voltz v. Blackmar, 64 N. Y. 440.)

ANDREWS, Ch. J. The primary purpose of the article published in The New York Times November 26, 1886, containing the defamatory matter for which the action was brought, was to expose the conduct of The Sun in officiously offering to pay, and in subsequently paying the claim of Holmes & Co., for alleged services in embalming and caring for the body of General Grant, after the claim had been repudiated by his family and its justice had become the subject of public comment. The offer to pay the bill made in the columns of The Sun, which, as was stated by Holmes & Co. in their letter of October 4, 1886, "was under no legal or moral obligation" to pay it, appended to a statement which imputed to the family of General Grant in their dealings with Holmes & Co., a disregard of honor and moral obligation, was well calculated to wound the feelings of the members of the family and to excite the indignation of their friends and the friends of the illustrious soldier whose name was associated with the transaction. The offer carried an implication that the family of General

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[Vol. 147.

Grant had disregarded and refused to recognize an honest claim for services connected with the preparation of his body for burial, which, if well founded, would justly expose them to animadversion. This was the occasion for the article in The Times, and the plaintiff had made himself a party to the controversy by his letter to The Sun of October 4, 1886, in which he put himself in the attitude of having a just claim for services rendered for the amount of the bill rendered by Holmes & Co., which the family of General Grant had declined to recognize, and, to accentuate the alleged injustice with which he was treated, he intimated his willingness to accept the public offer of a stranger to the transaction to pay the claim in case "those whom we think are legally and morally bound to pay the claim do not sooner recognize their obligation by its payment." The plaintiff had, by his own act in writing the letter of October 4, 1886, thrust himself and his conduct into the arena of public discussion, and, as might reasonably have been anticipated, the charge made against the family of General Grant of delaying and repudiating the payment of an honest claim was met by public denial in the New York papers, and a public criticism of the origin and character of the claim asserted by Holmes & Co. The defendant failed to establish before the jury the justification set up in the answer to the statement in the article in The Times, that the plaintiff was intoxicated in the afternoon and evening of July 23, 1885, during his alleged employment at Mount McGregor. The evidence upon the point was conflicting, but the finding of the jury determines the fact in favor of the plaintiff. The plaintiff was, therefore, entitled to recover damages for this misstatement. It was defamatory, and while there is no ground to suppose that the statement was instigated by actual malice or ill-will towards the plaintiff, its absence constitutes no answer to the claim for damages. The publication of a libel is a wrongful act, presumably injurious to those persons to whom it relates, and in the absence of legal excuse gives a right of recovery irrespective of the intent of the defendant who published it, and this

N. Y. Rep.] Opinion of the Court, per ANDREWS, Ch. J.

although he had reason to believe the statement to be true, and was actuated by an honest or even commendable motive in making the publication. But the amount of damages in an action for libel is peculiarly within the province of the jury. The jury may give nominal damages, or damages to a greater or less amount, as they shall determine. The jury may accord damages which are merely compensatory, or damages beyond mere compensation, called punitive or vindictive damages, by way of example or punishment, when in their judgment the defendant was incited by actual malice or acted wantonly or recklessly in making the defamatory charge. (Taylor v. Church, 8 N. Y. 452.) The trial judge left it to the jury to determine, in case they should find for the plaintiff, the whole subject of damages, and whether punitive damages should be awarded. The plaintiff having practically withdrawn from the jury the consideration of the charge in the article that he had presented an unjust and extortionate bill, by not reading that part of the article to the jury, although it was counted on in the complaint, the defendant had no occasion to justify that charge, although a justification was set up in the answer. The omission of the plaintiff to rely upon this charge was apparently to avoid a trial of the issue of justification thereon, which, on the former appeal in this case, was held to have been established (121 N. Y. 461). On the trial now under review, the defendant offered in substance to prove, in mitigation of damages of the charge of intoxication, that the bill presented by Holmes & Co. was unjust and extortionate, and if the evidence was competent for that purpose, the pleadings were in proper form to permit its introduction. We are of the opinion that, under the circumstances of the case, the evidence should have been admitted. Of course, the fact that the plaintiff had presented an extortionate bill did not tend to show the truth of the charge of intoxication, nor did it tend to disprove malice on the part of the defendant in making the latter charge that another and dissimilar charge in the same article was true. When the article was published, the defendant only knew from information as to the truth of

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[Vol. 147.

either charge. That The Times believed the article to be true in both respects and that in making the statements therein it relied upon what it supposed to be credible information, was permitted to be shown. Whether the information was actually true, it could not know at the time, and so far as its motive was concerned, and whether or not it was actuated by actual malice in making the charge of drunkenness, the actual fact subsequently proved of the truth of the charge of extortion could have no retroactive influence in determining the quo animo of the publication. (Hatfield v. Lasher, 81 N. Y. 246.) But we think the excluded evidence was admissible as bearing upon the conduct of the plaintiff in the transaction which he had aided in bringing before the public. It must be assumed, in view of the evidence offered and its rejection upon the plaintiff's objection, that he had posed before the public as having an honest claim, which had been dishonestly rejected, when in truth the claim made was dishonest and unjust. The plaintiff had by his conduct invited public discussion of the transaction. The article was written and published to meet the aspersions cast by the plaintiff and others upon the family of General Grant. It truly (as must now be assumed) exposed the conduct of the plaintiff as a distinct attempt, through appeals to the public and otherwise, to coerce the payment of a dishonest claim. In giving what purported to be a history of the transaction, The Times superadded a false and calumnious incident, without actual malice, as the jury might well have found. The two charges were made in respect of the same subject-matter. They related to the same transaction. The plaintiff makes no denial of the main matter in which the calumny originated, namely, the extortionate and unjust bill, but does deny the truth of one of the incidents of his conduct alleged in the article. He comes claiming damages for injury to his character. It is well settled that a defendant cannot show, in mitigation of damages for a specific libel, other and disconnected immoralities, but can attack only the plaintiff's general character. But the charges in the article were not disconnected and independent in any

proper sense, and we think it plain in reason that the plain-
tiff ought not in justice to recover punitive damages for
a misstatement in the article as to his intoxication, if it
appeared that his conduct in other matters in the transaction
to which the charge related had been reprehensible, and when
he himself had provoked public discussion. The conduct of
both parties in the whole matter should have been permitted
to be shown, so as to aid the jury in determining the extent of
the damages to be awarded.

The judgment should be reversed and a new trial ordered.
All concur.

Judgment reversed.

In the Matter of the Appraisal for Taxation of a Portion of

the Estate of JOHN B. SEAMAN, Deceased.

1. WILL REMAINDER - TRANSFER TAX. When a devise or bequest of a remainder works a vested, although defeasible, interest in the remainderman on the death of the testator, notwithstanding possession does not pass until the death of the life tenant, the transfer or succession takes place at the death of the testator, and if that occurred prior to the enactment of the Taxable Transfer Act of 1892 (Chap. 399) the remainder is not taxable under that act.

2. ESTATE IN REMAINDER-TIME OF TRANSFER- TAXABLE TRANSFER ACT. The will of a testator, who died in 1876, provided as follows: "All the rest, residue and remainder of my estate, real and personal, I give, devise and bequeath to my executors in trust to apply and pay over the income of one equal undivided half part thereof to my adopted daughter and niece, E. S., during her natural life, and upon her decease I give, devise and bequeath said equal undivided one-half part of my estate, so held in trust for my said adopted daughter and niece, to the children of my nephew, G. A. S., living at the time of her death, share and share alike." The life tenant survived the testator, but died in 1893. When the will took effect on the testator's death there were living four children of G. A. S., who still survive. There was no inheritance tax law when the will took effect, but the Taxable Transfer Act of 1892 was in force when the life tenant died and possession passed to the remaindermen. Held, that the transfer or succession to the four children of G. A. S. occurred at the death of the testator in 1876, when they took vested interests in the residuary property, both real and personal, subject, on the one hand, to open and let in after-born children, and, on the other, to be defeated by death without issue during the running of the life estate;