Tully v. New York Times Co.

Plaintiff sues to recover damages for libel consisting in the publication of the following article in defendant’s daily newspaper :

“Ghost Halts a $50,000 Suit. But John Tully Proves to be a Reality After All to His Daughters.”

“A suit for $50,000 against the City of New York was put on trial yesterday before Justice Dugro and a jury in the Supreme Court. The plaintiff's in the case were three sisters of the dead man, Catherine, Mary and Julia Tully. In order to bring the suit they had sworn that their parents were dead and took letters of administration for their brother’s estate. A rough pavement pitched Tully off a truck and killed him. Catherine was on the stand when the policeman attached to the Corporation Counsel’s office brought a man into the court room. As soon as the witness saw him she began to scream. In a moment the two other sisters were also screaming. The man the Corporation Counsel had brought into court was John Tully, the father of the three girls. As soon as they recovered from their hysteria they explained that they had not seen him for nine years, and thought he was dead. They added that they screamed because they thought a ghost had come to court Tully insisted that, though he had been separated from his family, the girls knew throughout the proceedings that he was alive and where he could be found. Justice Dugro suspended the trial and will make inquiry into the circumstances of the case to-day.”

The first separate defense is justification; the second, privilege. It is alleged in the first defense that on April 15, 1911, letters of administration on the estate of the deceased brother of the plaintiff were granted to his mother; that she, as his administratrix, brought an action to recover damages for his death; that on October 6, 1911, she died, and plaintiff was appointed administratrix de bonis non of her brother’s estate on November 3, 1911, and continued the action brought by her mother. The plaintiff, in order to obtain said letters of administration de bonis non, alleged in her petition as follows:

“And your petitioner has been informed and believes that the deceased left him surviving said Julia A. Tully, has mother, who has since died as above stated; Ellen Reilly, his sister; your petitioner, Mary A. Tully; John Tully, a brother; Eugene Tully, a brother; Joseph Tully, a brother; and Catherine Tully, a sister—as Ms only next of 7cm.”

Plaintiff demurred to this defense as insufficient in law, and the demurrer was sustained. Her contentions are: First, that a defense of justification must admit the publication, and that nowhere in said first separate defense is such admission to be found.

[1,2] Under section 522 of the Code each material allegation of the complaint not controverted by the answer is to be taken as true. It is elementary that each separate defense is to be tested alone, and therefore, by not denying, it admits, publication.

[3, 4] Plaintiff’s second objection to the defense is that the justification is not as broad as the libel, inasmuch as the alleged libel charges plaintiff with having sworn, in substance, that her father was dead, and the facts pleaded in justification show that she made such oath only on information and belief. The rule, however, is that" the justification must be as broad as the libel, not that it must be as broad as all the immaterial and irrelevant facts alleged in the libel.

The defense of justification, howevér, does not rest solely upon the allegations set forth in the first defense as to what actually transpired in court, but alleges other facts, including an alleged letter written by plaintiff, at or about the time of swearing to the petition in question, showing actual knowledge at that time that her father was living. We think, therefore, that the defense of justification as alleged is sufficient.

Eor the same reasons, the defense of privilege, as set forth in the second separate defense, is sufficient.

The interlocutory judgment, sustaining the demurrers, must be .reversed, with costs, and the demurrer overruled, with costs.

BIJUR, J., concurs. SEABURY, J., concurs in result.