Mattice v. Wilcox

tel under the rule prescribed by the Code. See Code Civil Proc. §§ 494, 500. In Thompson v. Halbert, 109 N. Y. 329 , 16 N. E. Rep. 675 , it was held, viz.: “ Where new matter is set forth in an answer, and it is not expressly stated therein to be a partial defense, as prescribed by the Code of Civil Procedure, (section 508,) it must be assumed that the new matter alleged is pleaded as a complete defense, and, if demurred to, it must be tested as such.” Besides, the defendant in his answer says “as a second defense,” that he “alleges and will prove as matters of justification of publishing said alleged articles.” Thereafter he inserts what he maintains is a justification of the libel set out in the complaint. The rule that a justification in an answer must be as broad as the charge which it seeks to justify was reaffirmed in Hathorn v. Spring Co., 44 Hun, 608 . We think the justification is defective in not stating the particulars and facts tending to establish the truth of the alleged libelous words. The answer is not co-extensive with the charge in the publication; it is therefore defective. Fidler v. Delavan, 20 Wend. 57 ; Sterling v. Sherwood, 20 Johns. 204 . The answer fails to show that the plaintiff is guilty of the offense imputed to him in the language set out in the complaint. We think the words found in the complaint were libelous within the rule laid down in Sanderson v. Caldwell, 45 N. Y. 398 , and we think the language used by Andrews, J., in that case is applicable to the case before us, when he said: “Considering the language of the libel in connection with the extrinsic facts proved, that the plaintiff was, at the time, a lawyer engaged in the practice of his profession, it is a just inference that the words used related to him in his professional character. * * * When the words spoken have such a relation to the profession or occupation of the plaintiff that they directly tend to injure him in respect to it, or to impair confidence in his character or ability, when, from the nature of the business, great confidence must necessarily be reposed, they are actionable, although not applied by the speaker to the profession or occupation of the plaintiff.” Id. 405 ; Bergmann v. Jones, 94 N. Y. 52 . In Cruikshank v. Gordon, 1 N. Y. Supp. 443 , it was said that “a charge, made maliciously, in respect to the professional capacity of a person, which, if true, would render him unworthy of employment, is actionable per se.” In Henderson v. Association, 46 Hun, 505 , it was said, viz.: “The plaintiff is a lawyer and notary public, and the words are charged to have been published concerning him. This is a good cause of action. It is not necessary to set forth extrinsic facts showing the application to plaintiff. Code, § 535. And none are needed to show the words to be capable of a libelous meaning in themselves. Yone other seems possible.” The learned counsel for the appellant calls our attention to Kingsbury v. Bradstreet Co., 116 N. Y. 211 , 22 N. E. Rep. 365 ; but in that ease “the words and character of the circular, standing by themselves, were incapable of a defamatory meaning.” It was therefore held that, “in the absence of averment and proof of facts showing tfiat they had a latent meaning of that character, there was no question of fact for the jury. ” We see nothing in the case which aids the contention of the appellant. We are quite well satisfied with the views expressed in the opinion of the learned judge at special term. We sustain the conclusion reached at the special term. Judgment affirmed, with costs, with leave to appellant to amend his answer upon payment of the costs of the demurrer and of this appeal. All concur.