FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. in evidence, but it was excluded upon the defendant's objection. Of course the defendant had no reason to complain of this ruling, because the answer, whatever it was, was not permitted to go before the jury, and there was no information with regard to it. The witness who identified the answer was the counsel of the defendant, and he was thereupon interrogated as to the source whence he obtained the information upon which he relied in framing the answer. The questions in that regard were not objected to and he answered them. As they were not objected to, the defendant had no ground of complaint because the witness was permitted to answer them. But an examination of the evidence which he gave shows that it could not by any possibility have resulted in any harm to anybody, because it practically gave no information with regard to anything. No other evidence on that subject was sought to be elicited from that witness, but after the defendant's case had closed, the plaintiff put upon the stand the attorney in the action of Smith against this defendant (N. Y. News Publishing Co.), and proved by him that he brought an action against this defendant for libel on the 13th of June, 1890, and that the answer was served on the 27th of February, 1892. What was the result of that action or whether the action. was ever tried, was not made to appear, and no questions were asked concerning it. A careful consideration of the case leads us to believe that there was no possible aspect of it in which this evidence could have been of any materiality whatever. In its charge the court said to the jury that they might consider from the evidence whether the act was malicious, or whether it was such a negligent act, or so grossly negligent or so wantonly done, that the defendant should be punished; that an example should be made of him, so that the publishers of a paper hereafter should not repeat it, or that other publishers should be warned not to publish similar articles. But the jury were expressly told that the plaintiff was not entitled to recover punitive damages unless they found from the evidence that the article was published wantonly, negligently or maliciously. In this statement of the law, clearly no mistake was made. (Bergmann v. Jones, 94 N. Y. 51; Smith v. Sun Print. & Pub. Co., 55 Fed. Rep. 240; Smith v. Matthews, 152 N. Y. 152.) In the case of Bergmann v. Jones (94 N. Y. 51) it was held that where a libelous article was published of the plaintiff App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. and the falsity of the article was shown, that of itself was sufficient evidence of malice to warrant the jury in giving punitive damages if they saw fit to do so. In this case there was no claim that the article was not false. Its falsity appeared affirmatively by the evidence of the plaintiff, and there was no effort on the part of the defendant to prove anything to the contrary. But in addition to that, there was evidence from which the jury might have found that there was express malice in this publication. It appeared that the plaintiff before bringing his action had made an effort to obtain a retraction, but that the effort was entirely futile. All that he succeeded in getting was that, if he could furnish proof of the untruthfulness of the article, the defendant would be very happy to make such retraction as might be just and proper in the premises. The presumption was that the article was false; and when the defendant was called upon to make a retraction of it, it was its duty, unless it had reason to believe that the article was true (and of that there is no claim), to retract the charge as fully and broadly as it had been made. A refusal to do this, coupled with the manner of the publication, would clearly warrant the jury in coming to a conclusion that the article was published wantonly at least and with utter disregard of the rights of the plaintiff. It has been held by this court, and is undoubtedly the law, that a publication under those circumstances would warrant the jury in giving to the plaintiff exemplary damages. (McMahon v. Bennett, ante, p. 16.) The learned judge in his charge said to the jury that they might give to the plaintiff damages to compensate him for the mental suffering, sense of shame and wounded honor which he has endured ; and to this charge an exception was taken. The defendant insists that there was no evidence that the plaintiff endured any mental suffering or any sense of shame or wounded honor, and that he is not entitled to damages for any such thing unless he makes it appear affirmatively that such conditions exist. This is not the law. A publication of a libel, which reflects upon the character of a reputable man, must necessarily cause him more or less mental suffering and humiliation, and these things are elements of general damages which the jury may take into consideration. They need not be pleaded, nor need any proof be given of them, because it will be assumed that such things follow the knowledge of the publication of a libel FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. against an honest man. For that reason the exception to that portion of the charge was not properly taken. The defendant complains of the size of the verdict, which was $7,500, and insists that it is excessive. That we cannot say. The paper in which this libel was published has a circulation of 100,000, very largely in the city of New York. The plaintiff's business was one which involves grave responsibilities, and required that he should have and be able to retain the confidence of those who employed him. His employers were men of considerable financial responsibility, and the plaintiff was not infrequently intrusted with the management of affairs of great interest. No charge could be made against him that would be so destructive of his usefulness as the charge of dishonesty; and the circumstances under which this charge was made and the nature of the charge were such as to seriously impugn his honesty and reliability. There is no reason to suppose that the damages given by the jury were any more than fair and proper in view of all the circumstances which are made to appear in the case. No other objection to this judgment is suggested by the defendant's counsel. The judgment and order, therefore, must be affirmed with costs. VAN BRUNT, P. J., PATTERSON and INGRAHAM, JJ., concurred. Judgment and order affirmed, with costs. TIMOTHY DOORLEY, Respondent, v. MARY O'GORMAN, Appellant, Impleaded with Others. Ejectment a second new trial granted only as a matter of favor — not granted because one party succeeded on the first trial, and the other party on the second trial. Under section 1525 of the Code of Civil Procedure, governing the granting of new trials in actions of ejectment, a new trial may be had of right only after the entry of the first final judgment; after the entry of a second final judgment, a second new trial may be granted only as a matter of favor. A second new trial will not be granted as a matter of favor upon the ground that justice will be promoted thereby, simply because it appears that the party making the motion for the second new trial succeeded on the first trial, and that the other party succeeded on the second trial. App. Div.] FIRST DEPARTMENT, JUNE TERM, 1898. APPEAL by the defendant, Mary O'Gorman, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, respectively, on the 28th day of January, 1898, and on the 25th day of February, 1898, denying the applications of said defendant for a new trial under section 1525 of the Code of Civil Procedure. Dennis Me Mahon, for the appellant. Louis Levy, for the respondent. RUMSEY, J.: The action is ejectment. It was tried on the 5th of December, 1895, and a verdict rendered in favor of the defendant, O'Gorman, upon which verdict a final judgment was entered on the 20th of December, 1895. That judgment was affirmed by this court upon appeal and the plaintiff thereupon obtained a new trial upon payment of the costs, in pursuance of the provisions of section 1525 of the Code of Civil Procedure. Upon the new trial the plaintiff recovered and a final judgment was entered in his favor on the 20th of December, 1897. A motion was thereupon made by the defendant for a new trial under section 1525 of the Code. This motion was made upon the theory that she was entitled, under the section mentioned, to a new trial as a matter of right, upon payment of the costs and expenses of the former trial. The motion, however, was denied, without prejudice to another motion to be made by her if she should be so advised, on proof that justice would be promoted and the rights of the parties more satisfactorily ascertained and established by a new trial. The defendant thereupon moved under that provision of the statute for a new trial, upon affidavits, which, as she claimed, tended to show that justice would be promoted and the rights of the parties more satisfactorily ascertained and established, as is required by the latter portion of section 1525. That motion was denied for the reason that it did not appear that justice required a new trial. From each of these orders this appeal is taken, the defendant claiming in the first place that she was entitled to a new trial as a matter of right, but if she is wrong APP. DIV.-VOL. XXXI. 28 FIRST DEPARTMENT, JUNE TERM, 1898. [Vol. 31. in that contention, insisting that, upon the papers presented on the second motion, it appeared that justice would be promoted by granting her a new trial, and the court erred in denying that motion. At common law, a judgment in an action of ejectment was not conclusive except as to the demise laid in that action, and as many other actions upon a new demise could be brought between the same parties as the plaintiff desired. (Adams Eject. 192, 315.) To prevent this endless litigation it was provided by the Revised Statutes that the judgment in an action of ejectment should be conclusive, and it was given precisely the same effect as any other judgment between the parties (2 R. S. 309, § 36), but at the same time, for the more satisfactory settling of titles, and to prevent injustice because of surprise or an unforeseen failure of proof, the provisions for a new trial in certain cases, as a matter of right, were inserted in the statute. (2 R. S. 309, § 37.) This provision for a new trial was not, therefore, a restriction upon the rights of parties, but it was an enlargement of those rights. It was created by statute, and depends entirely upon the statute for its existence, and can only be granted in those cases in which the statute authorizes it to be done. The statute makes the granting of a new trial in these cases dependent upon the entry of a final judgment. That judgment may be for either of the parties, but when a final judgment has been entered, whether for the plaintiff or defendant, the statute gives to the party against whom the judgment is rendered the absolute right to a new trial upon payment of costs and certain damages. This right accruing, as it does, at any time within three years after a final judgment is rendered in the action, expires when the new trial has been once granted. There is no provision for a second trial, as a matter of right, after the entry of a second final judgment, but that right is expressly confined to a new trial after the first judgment is entered in the action, and it can only be availed of within three years after that judgment has been entered. The second new trial, which is permitted after the second final judgment, is not given as a matter of right. That is given only when the court shall be satisfied that justice will be promoted by it, and the rights of the parties more satisfactorily ascertained and established. Under the section, the right to a new trial after the second final judgment is especially limited by those words. In |