dissent">INGRAHAM, J. (dissenting).

I concur in the affirmance of this judgment, and wish merely to add a few words to the opinion of Mr. Justice O’BRIEN on the effect of the decision of Wuensch v. Association, 4 App. Div. 115, 38 N. Y. Supp. 607. I do not consider that that case settles in this court the proposition claimed for it,—that in no case can any facts be considered in mitigation *645of damages, except punitive or exemplary damages. That case came before the court on a motion to strike out the facts alleged as a “separate and partial defense and in mitigation of damages.” Those allegations were clearly inadmissible, either as a defense or in mitigation of damages of any kind. The incidental remark contained in the opinion that “mitigation extends or relates only to punitive or exemplary damages” was not at all necessary to the decision of that case, and could only be held to apply to the particular facts therein alleged, and not as a general statement of the law applicable to all cases of libel. No authorities are cited to sustain the proposition, and it is quite apparent that the questipn was not argued, or necessary to the decision of the motion then before the court. The question cannot be said to be clearly presented in this case, as it is quite evident from the amount of the verdict that the jury considered that the facts of the publication were such as to justify them in awarding punitive or exemplary damages. The court, in its charge to the jury, expressly instructed them that they were not to award to the plaintiff any damages for that portion of the publication which had been proved to" be true. Upon this subject the court charged as follows:

“Did what really occurred there in New Jersey on that evening warrant the account which the defendant published? If it did, then the verdict should be for the defendant; if it did not, then it will be your duty to determine what portion of the matter in question has not been shown by the defendant to be true; and then, did the portion that remains, stripped of the portion that has been shown to be true, inflict any injury or damage upon the plaintiff? Bearing in mind, now, that view of your duty, you will proceed to determine what your verdict shall be.”

Thus the court, in directing the jury as to the parts of the publication for which they were justified in avoiding compensatory damages, restricted them to that portion of the publication which was not shown to be true; and as they were limited to a finding of damage for the portion of the publication not shown to be true, the facts which were proved to be true could not be considered by the jury in mitigation of the damages caused by the part of the article not true. Counsel for the plaintiff then stated to the court:

“Tour honor has charged the jury that they may take into consideration tho evidence adduced on the part of the defendant in mitigation of damages on the question .of actual damage. Now, the rule of law is that mitigation only goes to exemplary damages. And I ask you to so charge,”—to which the court answered, “I think that is so.”

We must consider this request and remark of the court in connection with the rule as to damage already charged, and I think it amounted to but this: That the court, having restricted the jury, in the consideration of the amount that they should award as the actual damage inflicted upon the plaintiff by the libel, to that portion of the libel which was not true, then stated that the facts proved which had been introduced in mitigation of damages should not be considered by the jury as mitigating the damage actually inflicted upon the plaintiff by the portion of the publication which had been proved to be true. I do not think that that charge was error. Whether or not what the court said to the jury was erro*646neous, and requires a reversal of the judgment, must be considered in relation to the facts of this particular case; and while I think that the remark of the court may be too broad as a general proposition, it would not be an error that would justify us in reversing the judgment if, as applied to the particular facts of this case, and to a rule of law which had been laid down by the court to govern the jury in their disposition of the question of damages, which rule of law had not been objected to by either party, no injury could result to the defendant. The general proposition that in no action for libel or slander could facts alleged and proved in mitigation be considered by the jury in determining whether the actual damage has been in consequence of the whole publication, I do not consider as correct. • The rule is stated generally in the case of Wachter v. Quenzer, 29 N. Y. 551, as follows

“The defendant may set up a justification, or he may allege facts short of a full justification, but' giving some color to the charge, by way of modification, or he may do both; and in either case he may prove the facts as they are, though they fall short of a justification; and the jury may take them into consideration for the purpose of mitigating the damages.”

This statement of the general rule has been affirmed many times by the courts of this state and by text writers upon.the subject. In none of the cases that I have examined has it been expressly held, where the point was directly before the court for adjudication, that in no case can facts be proved which could be considered by the jury in mitigating the actual damage sustained by the plaintiff in consequence of the whole publication as alleged in the compláint. If a party is entitled to prove facts short of a full justification, but which give some color to the charge, and if the jury may take such facts into consideration for the purpose of mitigating the damages, it seems to me that it must be the damages sustained in consequence of the whole publication, and for which the plaintiff would be entitled to recover, if none of the facts alleged in the libel had been true. The amount of the damage that a person libeled is entitled to recover as cojnpensation must necessarily be determined by the jury, not upon any fixed scale which can be stated as settled by a rule of law, but as compensation for the injury received in consequence of the publication of the libel taken as a whole; but that amount can be reduced if it should appear that a portion of the publication was true, for as to the injury inflicted by virtue of the publication of a true statement, no matter how injurious to the person of whom such statement is made, there cannot be a recovery. The cases in which the court has stated' that facts in mitigation of damages are evidenced only in mitigation of punitive or exemplary damages are cases in which the facts sought to be alleged were only relevant as showing the want of actual 'malice on the part of the defendant. An example is in the case of Witcher v. Jones (Com. Pl.) 5 N. Y. Supp. 917, which was affirmed by the court of appeals in 137 N. Y. 599, 33 N. E. 743. There the court says:

“In the absence of privilege, the law conclusively implies malice—i. e. want of legal justification—in the publication of an actionable libel; and, in any event, *647the plaintiff is entitled to full compensation for his injury. But when, beyond mere indemnity, the plaintiff seeks to recover exemplary damages, the fact of actual malice in the publication becomes a relevant and material consideration. Hence, in defeat or mitigation of exemplary damages, the defendant may introduce any evidence of which the legitimate tendency is to show that he was not actuated by a wanton or malicious motive; as, for instance, that the libel was uttered negligently, or against his will, or in belief of the apparent truth of the defamatory charge.”

This decision, and others of like character, apply only to facts tending to show a want of actual malice on the part of the defendant; and it is clear that in those cases they cannot have the effect of mitigating the actual damage sustained by the plaintiff.' But in a case where a publication consists of more than one libelous statement, and the defendant is justified in offering in evidence in mitigation of damages the partial truth of the libel, and such facts are to be considered by the jury in mitigation of damages, it would seem to me to follow that such facts are provable to decrease the damage which would have been sustained by the plaintiff by the publication as a whole, if the defendant had failed to prove the truth of any of the facts alleged which constituted the libel.

I have before stated the reasons why I do not think that the instruction to the jury in this case was to the effect that the facts as proven could not be considered in mitigation of the actual damage sustained by the plaintiff in consequence of this entire publication, for the court had instructed the jury that they were not to consider upon the question of damages any part of the libel which had been proved to be true; and the other facts alleged in the justification apply only to the question of the defendant’s malice, and which necessarily were confined to the question of punitive damages.

In the rest of Mr. Justice O’BRIEN’S opinion I concur, and therefore concur in the affirmance of the judgment.

McLAUG-HLIN, J., concurs.

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