Opinion
Argued April 28, 1980
Decided June 5, 1980
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, ROBERT J. McDOWELL, J.
Lewis A. Kaplan, Richard Kurnit and Joseph L. Watson for respondents-appellants.
James M. Hartman and Edward H. Fox for appellant-respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, without costs.
Defendants' claim concerning the propriety of the charge to the jury is not preserved for review (CPLR 4110-b), as defendant not only failed to object to the court's instruction, but in fact requested a charge which was substantially the same as the one rendered. Nor can it be said, as a matter of law, that the verdict of the jury, under the instructions given, is unsupported by the record. Defendants' remaining contentions have been examined and found to lack substantial merit.
On plaintiff's cross appeal, we find no error in the disallowance of preverdict interest. It is a settled rule that preverdict interest is not obtainable as of right in a libel action (e.g., Wilson v City of Troy, 135 N.Y. 96, 105). Any change in this rule should be effected legislatively, and not judicially (see Purcell v Long Is. Daily Press Pub. Co., 9 N.Y.2d 255, 259).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum; Judge GABRIELLI taking no part.
Order affirmed.