(212 N. Y. 344) COHALAN v. NEW YORK PRESS CO., Limited. (Court of Appeals of New York. July 14, 1914.) 1 APPEAL AND ERROR (§ 1068*)-HARMLESS ERROR-REFUSAL OF INSTRUCTIONS. Refusal of defendant's requested instruction as to malice, affecting the rule of damages, the right to award punitive damages depending on the libel, being found to be malicious, cannot be held harmless, merely because the verdict is so moderate that it apparently includes no punitive damages. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228; Dec. Dig. § 1068.*] 2. APPEAL AND ERROR (§ 1170*)-HARMLESS ERROR-INSTRUCTIONS. Refusal of the instruction in libel that actual malice, justifying punitive damages, can only be established by a fair preponderance of the evidence is cured, within Code Civ. Proc. $1317, requiring error not substantially affecting rights to be disregarded on appeal, by an instruction requiring the jury, before it can award punitive damages, to affirmatively find, from the nature of the publication and the other evidence in the case, actual malice. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. 8 1170.*] Appeal from Supreme Court, Appellate Division, First Department. Action by John P. Cohalan against the New York Press Company, Limited. From a judgment of the Appellate Division (148 App. Div. 89, 132 N. Y. S. 1101), affirming, by a divided court, a judgment for plaintiff, defendant appeals. Affirmed. Philip Carpenter, of New York City, for appellant. Almeth W. Hoff, of New York City, for respondent. may be affirmed because the verdict was not so large as to indicate that it included punitive damages. We cannot concur in this view. If carried to its logical conclusion, it would authorize an appellate court to overlook any error in a charge on the subject of punitive damages in a case of libel, whenever the verdict happens to be so moderate that it apparently includes no punitive damages. Neither the Appellate Division nor this court has any such plenary power. The judgment was properly sustained, however, for reasons which may be briefly stated. [2] The particular request to charge, upon which the counsel for the appellant bases his argument for a reversal of the judgment, is that: "In order to justify the jury in awarding a sum beyond mere compensation, the plaintiff must establish the fact of actual malice, and must do so by a fair preponderance of evidence." This request embodies the correct rule of law, and, if it stood alone, the refusal to charge it would be error, for which the judgment would have to be reversed. But the charge must be considered in its entirety and in its relation to the facts proved. The article, of which the plaintiff complained, was plainly libelous per se, although the trial court permitted the jury to determine its character. It was defamatory and it was false. The defendant pleaded, in mitigation of damages, that the publication was without malice and It is one of the well-settled rules of the law gave evidence tending to support the plea. of libel that malice may be inferred from the falsity of a defamatory publication. When a defendant gives evidence which negatives malice, it is for the jury to decide whether malice is proven, and, if so, whether the case is one for exemplary or punitive damages. Crane v. Bennett, 177 N. Y. 106, 69 N. E. 274, 101 Am. St. Rep. 722. PER CURIAM. [1] At the Trial Term the plaintiff recovered a verdict of $10,000 damages for the publication of a newspaper libel in derogation of his character and motives as a public officer. The judgment entered upon the verdict was affirmed, by a divided court, at the Appellate Division. We think the result is right, and we would affirm on this appeal without opinion, but for some ex-law on that subject, and left it to the jury to pressions in the prevailing opinion below to which we cannot subscribe. At the Appellate Division and in this court the learned counsel for the defendant argued that the trial court had committed error in declining to charge a request relating to the question of malice, and affecting the rule of damages. The case being one in which the jury had the right to award punitive damages if the libel was found to be malicious, it is obviously important that there should be no uncertainty in the statement of law applicable to that question. Upon that subject the prevailing opinion below expressed a view that might lead to confusion if permitted to go uncorrected. It is to the effect that, even though there was error in the charge on the question of punitive damages, the judgment The learned trial justice, in the main charge, admonished the jury that the defendant asked for a mitigation of damages on the ground that the publication had been made without malice or ill will. He correctly defined the decide from the nature of the publication, "and the other evidence in the case," whether there had been malice in the publication. At the request of the counsel for the plaintiff the trial justice instructed the jury that: "The nature of the publication itself, and the circumstances under which it was published, can be considered by the jury in determining whether or not actual malice did exist; but from that fact, and the other evidence in the case, the jury must affirmatively find such actual malice before they would be justified in awarding exemplary damages." This charge, we think, cured the error in refusing the above quoted request of the defendant. The trial justice did not charge in express words that actual malice could only be established by a fair preponderance of the evidence, but he said that in substance, when For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes he submitted the question to the jury upon he sought to justify his disobedience of the the nature of the publication and the other order by chapter 360 of the Laws of 1911, evidence in the case. In the light of this lat-known as "the Three Platoon" law, which ter charge, it is evident that the refusal to provided inter alia for the division of the sercharge, as requested by defendant's counsel, geants, roundsmen, and patrolmen of the podid not substantially affect the rights of the lice force into three platoons, and that: defendant; and in these circumstances the letter and the spirit of section 1317 of the Code of Civil Procedure require an affirmance of the judgment, with costs. WILLARD BARTLETT, C. J., and WERNER, HISCOCK, COLLIN, HOGAN, and CARDOZO, JJ., concur. MILLER, J., not sitting. Judgment affirmed. (212 N. Y. 348) PEOPLE ex rel. MacNISH . WALDO, "No one of such platoons nor any member thereof shall be assigned to more than one tour of duty; such tour of duty shall not exceed eight hours of each consecutive twenty-four hours, nor more than eight hours of reserve duty of each consecutive seventy-two hours, excepting only that in the event of strikes, riots, shall assemble, or other similar emergency, or conflagrations, or occasions when large crowds on a day on which an election authorized by law shall be held, or for the purpose of changing tours of duty, so many of said platoons, or of the members thereof, may be continued on duty for such hours as may be necessary." Section 1. There is no dispute about the facts. The relator had finished his tour of duty at about midnight on May 8th, and his next tour of (Court of Appeals of New York. July 14, duty began at 4 p. m. on May 9th. His posi1914.) tion is that in the interval between tours of MUNICIPAL CORPORATIONS (§ 189*)-POLICE-duty he was not subject to the orders of his THREE PLATOON LAW-OBEYING SUPERIOR. Under the Three Platoon Law (Laws 1911, c. 360) § 1, providing for the division of the sergeants, roundsmen, and patrolmen into three platoons, and that no one of them, nor any member thereof, shall be assigned to more than one tour of duty, such tour not to exceed 8 hours of each successive 24 hours, nor more than 8 hours of reserve duty of each consecutive 72 hours, and section 3 providing that policemen, "while on reserve duty, as mentioned in the first section," shall not be required to render any service, except in case of an emergency, and shall be free to retire for sleep "during reserve duty in their station house,' a policeman is not relieved of duty, when not on his tour or reserve duty, as so defined, to obey an order of his superior, as one to drill, pursuant to a requirement of the department for drill for an hour seven times a year. superior. We do not so construe the statute. The purpose of the statute is reasonably plain. It was entitled "An act to promote the health and efficiency of policemen in cities of the first and second class." Considerable public discussion attended its enactment. Its purpose was to shorten the time of consecutive service on a tour of duty to 8 hours out of every 24, and that was achieved by the "three platoon" system and by the requirement that no one should be assigned to more than one tour of duty, not to exceed 8 hours out of 24. The relator's tour of duty was the patrolling of his post, and he could be required to do that only 8 hours out of 24. If the Legislature had meant to relieve members of the force of all duty, even of that of obedience to their superiors, except during 8 hours out of 24, we think they would have Appeal from Supreme Court, Appellate Di- plainly said so. The statute may be reasonvision, First Department. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 88 487, 523, 524; Dec. Dig. § 189.*] Certiorari by the People, on the relation of Robert MacNish, to review the determination of Rhinelander Waldo, as Police Commissioner of the City of New York, dismissing relator from the police force. From an order of the Appellate Division (162 App. Div. 28, 146 N. Y. Supp. 1050), reversing the determination, appeal is taken. Order reversed, and determination confirmed. Frank L. Polk, Corp. Counsel, of New York City (Terence Farley, of New York City, on the brief), for appellant. Florence J. Sullivan, of New York City, for respondent. MILLER, J. The relator, a patrolman, was dismissed from the police force for disobedience of orders in flatly refusing to appear for drill at 3 p. m. on the 9th of May, 1913, as he was ordered by the lieutenant of his precinct to do. His refusal was put upon the ground that the order was in violation of law, and ably construed to accomplish the purpose intended without making it utterly subversive of all discipline. Section 3 provides: "Policemen, while on reserve duty as mentioned in the first section of this act, shall not be required to render any service except in case sleep during reserve duty in their station house, of an emergency, and shall be free to retire for subject to call in case of an emergency.' The relator was not on reserve duty. It is stated that the relator was ordered to report for drill in accordance with a custom of the department, pursuant to which the men were required to drill for an hour seven times during the year. Certainly such a requirement was reasonable, and we find nothing in the statute to make it unlawful. Moreover, to disobey the order was not the way to test the meaning of the statute. If each policeman were permitted to decide for himself the meaning of the rules of the department and of the statutes applicable to the discharge of his duties, there could be no discipline. The statement is made that the order was disobeyed for the purpose of presenting a test case. The action of the police commissioner tends to show that that was not done with his approval. If it was, the punishment was altogether too severe, but with that we have nothing to do. The order of the Appellate Division should be reversed, and the determination of the police commissioner confirmed. WILLARD BARTLETT, C. J., and WERNER, HISCOCK, CHASE, and CARDOZO, JJ., concur. HOGAN, J., not voting. Order reversed, etc. (212 N. Y. 341) COOPEP. v. ROCHESTER ICE CREAM CO. (Court of Appeals of New York. July 14, 1914.) was anything wrong about it; and that on that occasion, when she asked the plaintiff for an explanation because of her customers' complaints, he informed her that for once he had fallen short of his own cream, and furnished her with cream which he had bought from the defendant. Mrs. Garvey contradicts the salesman, and says that no such conversation occurred. Incensed at this report, the defendant's manager mailed to Garvey a circular extolling the defendant's products, to which he added in his own handwriting the following postcript: "We understand from several different sources that you received some cream from Mr. Cooper last season that was away off, no good, which the said Mr. Cooper claims he bought from us. We wish to say to you that we never sold an ounce of cream to the said Mr. Coopthese few lines to prove that our cream is all er since we have been in business, and we write O. K., and the kind of a man this Cooper is." The trial judge instructed the jury that, if LIBEL AND SLANDER (§_123*)-CONSTRUCTION Mrs. Garvey had in fact made to the defend-QUESTION FOR JURY. The letter written by defendant, a manu-ant's salesman the statements reported by facturer of ice cream, to G., "We understood him to his superiors, the letter written in dethat you" received some poor cream fense of the quality of the defendant's cream from C. (plaintiff, a manufacturer of ice cream), "which C. claims he bought from us, we wish was privileged, and the defendant was ento say to you that we never sold cream to C., titled to a verdict in its favor. If, however, * and we write to prove that our cream the jury found that Mrs. Garvey had made is O. K., and the kind of a man C. is," may no such statements, then they were instructed mean that plaintiff, to the knowledge of defendant, was the kind of a man who would lie that, as a matter of law, the letter was deabout his competitor's products in order to famatory, and that their verdict must be for help himself, or simply that, if plaintiff had the plaintiff, at least for some amount. To made the statements imputed to him, defend- the latter ruling there was an exception by ant wishes G. to understand that they are untrue, within the rule that words, prima facie the defendant. defamatory, may have an innocent meaning, when considered in the light of circumstances known to the reader, in which case the choice of construction is for the jury. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 356-364; Dec. Dig. § 123.*] We think that the writing is susceptible of two constructions, one defamatory and the other innocent, and that it was for the jury, and not the judge, to determine the true meaning. On the one hand, the letter might mean that the plaintiff, to the knowledge of the writer, was the kind of man who would lie about his competitor's products in order Action by Bert F. Cooper against the Roch- to help himself. On the other hand, it might ester Ice Cream Company. From a judg- simply mean that, if the plaintiff had made ment of the Appellate Division (152 App. Div. the statements imputed to him, the writer 900, 136 N. Y. Supp. 1133) affirming a judg-wished Garvey to understand that they were ment for plaintiff, defendant appeals. Re Appeal from Supreme Court, Appellate Division, Fourth Department. versed. Walter Jeffreys Carlin, of New York City, for appellant. Louis E. Fuller, of Rochester, for respondent. CARDOZO, J. The action is for libel. The plaintiff is a manufacturer of ice cream. The defendant is one of his competitors. Among the plaintiff's customers was a dealer by the name of Garvey. The defendant was anxious to win Garvey's custom for itself. In that hope it sent a salesman to solicit the coveted trade. On the salesman's return, he reported to the defendant a conversation between himself and Garvey's wife. She told him, so, at least, he reported, that the plaintiff's cream was satisfactory; that in all their dealings there had been but one occasion when there untrue. Whether he had made them or not was something that Garvey knew. The case is therefore one where words, prima facie defamatory, may yet have an innocent meaning when considered in the light of circumstances known to the reader. Odgers on Libel and Slander (4th Ed.) p. 116. It is one thing to say of a man: "I know him to be the kind of a man who would slander his rival's business, and his statement to you is merely additional proof of it." It is another thing to say: "If he did make such a claim to you, you can draw your own conclusions about him." The rule is that the choice between these alternative constructions, one disgraceful and the other innocent, must be made by the jury. Sanderson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105; Hayes v. Ball, 72 N. Y. 418, 421; For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes PROVEMENTS BY TENANT-DAMAGES. Garby v. Bennett. 40 App. Div. 163, 57 N. Y. 15. LANDLORD AND_TENANT (§ 159*) — IM- 210 N. Y. 13, 19, 103 N. E. 771. The judgment should be reversed, and a new trial granted, with costs to abide the event. upon the leased premises, as he agreed to do, the Where a lessee failed to erect a building measure of the lessor's damages, prior to the end of the term, is such sum as, with interest at 6 per cent., will produce the fair cost of the building at the end of the term. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 573, 608, 611; Dec. Dig. WILLARD BARTLETT, C. J., and WER-159.*] Judgment reversed, etc. (218 Mass. 91) WENTWORTH ▼. MANHATTAN MARKET (Supreme Judicial Court of Massachusetts. L LANDLORD AND TENANT ( 159*)-IM- AGES. Where defendant had leased certain prop erty from the plaintiff and agreed to erect a building thereon within a specified time, but the parties disagreed as to the character of the building, and defendant erected no building, although he was in full possession of the premises, the plaintiff is entitled to substantial damages for the breach of contract, notwithstanding the fact that the defendant's contention as to the character of the building required was correct. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 573, 608, 611; Dec. Dig. § 159.*] 2. SPECIFIC PERFORMANCE (§ 128*) — JURISDICTION RETENTION OF JURISDICTION TO AWARD DAMAGES. In the absence of evidence to the contrary, the legal rate of interest, which is fixed by Rev. Laws, c. 73, § 3, at 6 per cent., where there is no agreement for a different rate, will be held a reasonable interest. [Ed. Note.-For other cases, see Interest, Cent. Dig. §§ 64-67; Dec. Dig. § 31.*] 7. LANDLORD AND TENANT (§ 200*)-RENTCOVENANT INCREASED RENTAL. Where a lease required the lessee to erect a building upon the premises before a certain date and thereafter to pay an increased rental, but the parties disagreed as to the character of the building, and it was determined in a suit between them that the building was to be of the character contended for by the lessee, the lessee is required to pay the increased rental only from the date of the rescript in the suit, not from the date originally required for the completion of the building. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 794-797; Dec. Dig. 200.*] 8. APPEAL AND Error (§ 671*)—ReCORD-EVIDENCE-NECESSITY. An exception to the method adopted by the master in making his finding as to the reasonable cost of a building will be overruled, where it does not appear what the method was, and the evidence upon which the finding was based is not before the court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. § 671.*] 9. APPEAL And Error (§ 1050*)—HARMLESS ERROR-ADMISSION OF EVIDENCE — IMMATEBIAL EVIDENCE. Where a lessor filed a bill to compel specific performance of the lessee's agreement to erect a building upon the premises, and the court determined that specific performance should not be awarded, but that the plaintiff Where the only issue before the master was was entitled to damages, the court may retain the amount of damages, the admission in evijurisdiction to assess damages, instead of re-dence of the letter from defendant's counsel to quiring the plaintiff to institute a legal action therefor. [Ed. Note.-For other cases, see Specific Performance, Cent. Dig. §§ 412-419; Dec. Dig. 8 128.*] 3. LANDLORD AND TENANT _ (§ 157*) PROVEMENTS BY TENANT-COVENANT. Agreements by a lessee to erect on the premises a building "in a manner satisfactory" to the lessor, and "in a manner to the reason able satisfaction of the lessor," required the work to be done in such a way as ought reasonably to satisfy the lessor. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. $$ 571, 572, 574-582, 584 600, 602-607; Dec. Dig. § 157.*] 4. APPEAL AND ERROR (§ 1017*)—Review— FINDINGS BY MASTER. In an action for the lessee's failure to construct a building reasonably satisfactory to the lessor as provided by the lease, exceptions to findings by the master as to the character of the building will be overruled, unless the findings were plainly wrong. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3911, 3961, 3996-4005; Dec. Dig. 1017.*]` plaintiff's counsel, which was immaterial upon that question, could not prejudice the defendant, even if its admission was erroneous. Error, Cent. Dig. §§ 1068, 1069, 4153-4157. [Ed. Note.-For other cases, see Appeal and 4166; Dec. Dig. § 1050.*] 10. LANDLORD AND TENANT (§ 159*) — IMPROVEMENTS BY TENANT-ACTIONS-ADMISSIBILITY OF EVIDENCE. In an action for damages for the lessee's failure to erect a building as required by the lease, a bid received by the lessee for the erection of the building, which contained certain errors and omissions, and which was not accepted, had no tendency to show the reasonable cost of the building, and was properly excluded. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 573, 608, 611; Dec. Dig. § 159.*] Case Reserved from Superior Court, Middlesex County; Charles F. Jenney, Judge. Action by Reuben Wentworth against the Manhattan Market Company and another. Case reserved by a justice of the superior court upon the master's report, and the ob jections and exceptions of both parties there could be constructed to satisfy its obligation to. Decree ordered for the plaintiff. Elder, Whitman & Barnum, of Boston, for plaintiff. Henry T. Richardson, of Boston, for defendants. CROSBY, J. This case has been previously considered by this court. Wentworth v. Manhattan Market Co., 216 Mass. 374, 103 N. E. 1105. After the rescript of this court and in accordance therewith, the case was recommitted to the master, who assessed the damages to be awarded to the plaintiff. At the request of both parties the case was reserved by a judge of the superior court upon the master's report upon the assessment of damages and the objections and exceptions of both parties thereto, together with the record of the previous appeal; such decree to be entered as law and justice may require. [1] The defendant contends that it is liable only for nominal damages for failure to erect the building upon the premises because of the language contained in the previous opinion (216 Mass. 380, 103 N. E. 1105): “The plaintiff has refused to allow the defendant to erect one [a building] such as the contract provided for.' under its covenant, and except for that there was no plan at any time to erect any building upon the plaintiff's land." [2] We are of opinion that the plaintiff is entitled to damages (1) by reason of the failure of the defendant to erect the building, and (2) for failure to pay the rent stipulated in the lease. The plaintiff undoubtedly has a remedy at law for the recovery of whatever sums may be due him as rent under the lease, but as the bill is brought among other things to compel the specific performance of the contract, and as the court in the exercise of its discretion has determined that specific performance ought not to be ordered, but has determined that the proper relief to be awarded the plaintiff is that of damages, we tice in this commonwealth should not be see no reason why the rule in chancery pracfollowed in this case and jurisdiction re tained for the assessment of damages albeen refused. Newburyport Institution for though the relief of specific performance has Savings v. Puffer, 201 Mass. 41, 47, 87 N. E 562; Nickerson v. Bridges, 216 Mass. 416, 421, 103 N. E. 939. [3, 4] We are of opinion that the rulings The record shows that the plaintiff and the and findings of the master under the paradefendant were not in accord as to the size or graphs of his report numbered 1 and 2 are correct. The written agreement for the concharacter of the building that was to be erect-struction and finish of different parts of the ed. In other words, they differed as to the building recites that the same is to be done correct interpretation of the lease and con"in a manner satisfactory to said Wenttract which they had entered into. This worth" and "in a manner to the reasonable court has decided that the defendant was satisfaction of the said Wentworth." These correct in its interpretation of the agreement different forms of expression are to be construed as having the same meaning. They are to be considered as agreements to do the work in such a way as reasonably ought to satisfy the plaintiff. Handy v. Bliss, 204 Mass. 513, 519, 520, 90 N. E. 864, 134 Am. St. Rep. 673. It seems plain that the defendant was not required to put a roof on the brick building upon which was to have been placed the three story wooden building. Nor can we say that the findings of the master that the building should have a wooden floor, that the walls were not to be plastered, and the other findings, including the finding that such a building would cost $4,020, were plainly wrong. so far as it related to the dimensions and character of the proposed building. This does not, however, release or excuse the defendant from a failure to perform its contract, or, in the event of such failure, from responding in damages to the plaintiff. The language quoted from the opinion that "the plaintiff has refused to allow the defendant to erect one such as the contract provided for" cannot be construed as meaning anything more than that the plaintiff refused to agree to the defendant's interpretation of the contract. The defendant has been in full possession and control of the premises ever since June 1, 1910, and there is nothing to show that it might not have proceeded with the construction of such a building as was called for by the agreement, and have fully completed it on or before June 1, 1912. It would be inequitable for the defendant to be relieved from liability for failure to perform the contract which it admits it entered into. Especially is this true in view of the following finding of the master: "That the defendant, after it secured a renewal of its lease of the quarters now occupied by it, which was during the two-year period, at no time considered the erection of any new structure upon the premises leased by the plaintiff until after a demand from the plaintiff in the spring of 1912 for the erection of the building called for in the lease and agreement. The defendant then took up the question of the new construction, but went only so far as to determine what was the simplest building that [5] The finding as to the reasonable cost of the building is based upon the cost of such building before June 1, 1912, when, by the terms of the agreement, it was to have been completed, but as the defendant was entitled to the use and occupancy of the building, had it been erected, until June 1, 1920, the date when the lease, unless renewed, would expire, the plaintiff is entitled to recover as damages only a sum equal to the present worth of the building. That is to say, the fair cost of the building should be reduced to such a sum as, with interest at six per cent. will produce the amount at the end of the term. [6] We are of opinion that in the absence of any evidence to the contrary, 6 per cent. |