Samuels v. Bryant , 14 Abb. Pr. 442 ( 1872 )

Brady, J.

The application for a postponement of the assessment of damages herein does not rest upon any available fact, however it may appeal to the discretion of the court. The publication of the libel is admitted, and that an apology to the plaintiff was, in the issue of the defendant’s paper on the following day, fully made, is not denied. The plaintiff’s counsel did not on the former assessment claim vindictive or punitive damages, and the question what amount should be awarded was the only one left to the jury. The absence of Mr. Bryant cannot in any way affect the assessment of damages. It is not asserted' herein that he knows any facts or circumstances bearing upon that subject. He could doubtless state that the defendants were not influenced by any bad motive in publishing the article complained of, and that on learning their mistake they made immediate reparation by withdrawing the offensive and injurious publication, and by admitting publicly and in the columns of their paper that it was false. This is all conceded, and the case must go to the jury on such facts, and' must be considered by them with reference thereto.

It may not be an objection to the assessment that the present jury is the same as that existing when the former verdict was rendered, although it would be improper to place upon the panel of twelve any former juror, and it is not necessary doubtless that it should be done. The plaintiff’s counsel, on the argument of this motion, conceded this, and the right of the defendants to the usual challenge. The sheriff’s jury is composed of gentlemen who are hot likely to be blinded by prejudice, passion, partiality or bias, or a failure to appreciate the circumstances offered in mitigation of the damages therein.

The speedy retraction of a public slander, however ineffectual to entirely remedy the evil done, is an atonement of importance to the person injured, and a credit to the publisher. But although the objection be not valid, and the jury unassailable as honest men and true, nevertheless to remove all possible dissatisfaction, as it cannot lead to any prejudice to the plaintiff’s rights by delay or otherwise, I think it well in the exercise of a sound discretion to order the assessment to be made by the panel which had not cognizance of this case before. To such extent the motion is granted - It is otherwise denied. It is imposed as conditions, however, that a notice of two days, must, if necessary, be accepted by the defendants, and such a stipulation given as suggested by the plaintiff’s counsel.