Palmer v. Lang. tions appearing at folios 59 and 60 are merely a single exception taken three times in succession. The defendant sought to prove in mitigation of damages that the slanderous words complained of were spoken by him in the heat of passion, occasioned by recent conduct of a provoking character on the part of the plaintiff. The plaintiff was discharged from the defendant's employ on the 29th day of August, 1874. On the 22d day of October following, the quarrel occurred in which the defendant uttered the slander. The defendant attempted to show that between the dates just given, the plaintiff had gone about among the defendant's customers warning them against him, saying he would charge them usurious interest, sell them out, and break them up. The court excluded the questions put to the plaintiff for the purpose of showing that he had actually given the defendant the provocation of maligning him to his customers. I think such exclusion was error. The evidence shows clearly that the defendant was smarting under the injury which he believed he had received through the plaintiff's misrepresentations. The quarrel in the course of which the defendant spoke the slanderous words begun by the defendant calling the plaintiff to account for his statements respecting him. These statements, calumnies if not true, were directly connected with the slander which is the subject of this action. They were recent, frequently repeated and damaging to defendant's business. They were not disavowed when the defendant taxed the plaintiff with them. (Richardson v. Northrup, 56 Barb. 105; Townshend on Libel and Slander, pp. 626, 627, 628, and 629.) I think the defendant should have been allowed to prove them by the plaintiff. Had they been proven, it is very doubtful if the damages would have been swelled to a thousand dollars. Had there not been a connection between the plaintiff's misrepresentations and the defendant's slander, the ruling of the judge at the trial would have been proper. VAN BRUNT, J., concurred. Palmer v. Lang. Judgment reversed, new trial ordered, costs to abide event. On a motion for a reargument the following opinion was filed on April 2d, 1877. VAN HOESEN, J.-The respondent cites two cases which he thinks were overlooked by the November general term, and which, he thinks, if they had been examined, would have led the court to a view of the law contrary to that taken in the decision. The cases referred to by the respondent were not overlooked. They were not cited because they have not the slightest reference to the point in question. The question is, whether the defendant in a libel suit may prove that the libels complained of by the plaintiff were published under the provocation of other libels published by the plaintiff concerning the defendant? To show that such proof is not proper, the respondent relies first on the case of Lister v. Wright (2 Hill, 320), which merely holds that evidence of former controversies having no connection with the subject matter of the libels ought not to be received. The second case relied upon by the respondent is that of Underhill v. Taylor (2 Barb. 348), which very properly decides that irritating language spoken by the father of the plaintiff, was no excuse for the defendant's slander. In the case at bar, the evidence showed conclusively that the words for the speaking of which this action was brought were uttered under the provocation arising from the circulation by the plaintiff of reports intended and likely to injure the defendant in business. At folios 59 and 60 of the case the defendant's counsel asked the plaintiff, who was a witness on the stand, whether he did utter the slanders which led to the hot words for which this suit was brought. The court excluded the question; and when the appeal was argued at the November (1876) general term, Judge Van Brunt and myself thought such exclusion erroneous. It has always been the law that in actions of slander, as in actions of assault and battery, the defendant might prove Palmer v. Lang. provocation so recent as as to induce a presumption that the blow or the slander was brought about by the immediate influence of the passion thus wrongfully excited by the plaintiff. In Fraser v. Berkeley (2 M. & Rob. 3), Lord Abinger admitted evidence of a provocation, namely, a libel published sometime previous to the battery. It is for the jury to say whether the language uttered by the defendant was used because of the provocation received from the plaintiff. (Botelar v. Bell, 1 Md. 173.) Only nominal damages should be given where the parties publish defamatory matter one against the other. (Townshend on Libel and Slander, 2d edit. 414. See to the same effect Finnerty v. Tipper, 2 Camp. 72 and May v. Brown, 3 B. C. 126.) Provocation may be proved not merely when it is contemporaneous but also when it is so recent that it may fairly be presumed that the defendant uttered his slander under its influence. It may be contemporaneous or nearly contemporaneous; it being for the jury to say whether the defendant was stung by the provocation into uttering the slander. (Townshend on Libel, 416.) A careful reading of the case of Richardson v. Northrup (56 Barb. 10) will show that the court did not intend to depart from the rules laid down in the cases I have cited. The only connection that need be shown between the libel uttered by the defendant and that uttered by the plaintiff is, that the libel published by the plaintiff provoked the libel published by the defendant. (Addison on Torts, p. 996; May v. Brown, 3 B. & C. 126; Tarpley v. Blabey, 2 Bing. New Cases, 441.) The references I have made to the testimony show clearly that the defendant was provoked into speaking the alleged slander by information which he had received that the plaintiff had slandered him in a manner calculated to injure his business; and it was error to refuse the defendant the opportunity of proving that the plaintiff had really uttered the slanders. I am of opinion that the motion for a re-argument should Bruce v. Carter. be denied, and that a new trial should be had, as previously ordered. LARREMORE, J., concurred. CHARLES P. DALY, Chief Justice, was in favor of allowing a re-argument on the ground that it was doubtful upon the authorities of Lister v. Wright (2 Hill, 320) and Underhill v. Taylor (2 Barb. 348) whether the evidence offered in mitigation of damages in this case was admissible, and that the case of Richardson v. Northrup (56 Barb. 105) did not go so far as to authorize the admission of the evidence offered here. Motion for re-argument denied. JOHN M. BRUCE, Respondent, against WELLINGTON A. CARTER, Appellant. (Decided February 5th, 1877.) Where on the compromise of an action the defendant therein on his part gives his notes with an endorser, and the plaintiff on his part promises that on payment of the first of said notes he will give a release which upon payment of all of the notes, and not until then, shall take effect, and that he will then discontinue without costs and will not bring other suits, &c., the obligations of the parties are independent, the promise is a good consideration for the notes, and a failure to give the release upon the payment of the first notes, and where the release was not demanded, is not a good defense to an action brought on the last notes against the endorser by a person who took them for value before maturity with notice of the terms of the agreement in accordance with which they were made. APPEAL from a judgment of the Marine Court of the city of New York entered upon an order of the general term of that court affirming a judgment entered upon a verdict rendered against the defendant by direction of that court at trial term. The facts sufficiently appear in the opinion. Bruce v. Carter. Geo. P. Avery, for appellant. Albert Stickney, for respondent. ROBINSON, J.-The two notes in suit, being each for $1,000, were made in September, 1875, by Joseph Kelly, to the order of, and endorsed by, the defendant, and were executed and delivered in part performance of an agreement of compromise of certain actions in the Supreme and Superior Courts of this city, in which James J. A. Bruce and others were plaintiffs and said Joseph Kelly and others were defendants, which provided, among other things, for the payment to the plaintiffs in those actions, of six thousand dollars, as follows: Five hundred dollars in cash; fifteen hundred dollars by a note payable in ten days; one thousand dollars by a notepayable November 1, 1875; one thousand dollars by a note payable in four months; one thousand dollars payable in a note at five months; and another one thousand dollars in a note payable in six months, the notes in suit being the two latter, and the agreement provided in consideration of such payment and obligation that when three thousand dollars. had been paid, the suit in the Superior Court should be at once discontinued, and the decree therein modified in certain particulars, and that each of the plaintiffs in those actions should also at that time execute and deliver to the defendants a release under seal, duly acknowledged, releasing each and every one of the defendants in both of said actions "from all claim and demand of every kind and nature for or on account or by reason of the various matters, acts and transactions set forth and alleged in the complaints in said actions, or in either of them, which release, however, shall not become operative in favor of the defendants until all of said notes are paid, when said release shall become valid and binding," and thereupon the suit in the Supreme Court was to be discontinued without costs to either party, and no suit was to be brought upon the undertaking given by plaintiffs in the Supreme Court suit, or for damages. All those notes have |