Majority
p. 255(1 App. Div. 427.) ROEBER v. NEW YORKER STAATS ZEITUNG.[1] (Supreme Court, Appellate Division, First Department. February 7, 1896.) Argued before VAN BRUNT, P. J., and RUMSEY, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
Headnote
Libel—Answer—Truth or Publication.Allegations in an answer to a complaint" for libel averring truth of certain facts in the publication, even if not sufficient as a justification, being sufficient in mitigation of damages, are not demurrable on the ground that they do not constitute justification, they not being set forth as a separate defense, or alleged to be a justification, and being connected with a plea in mitigation of damages.
Appeal from special term.
Action by William Boeber against the New Yorker Staats Zeitung for libel. A demurrer to a subdivision of the answer was overruled, and plaintiff appeals. Affirmed.
F. Pierce, for appellant.
H. P. David, for respondent.
The complaint alleges the publication by the defendant of an article concerning the plaintiff which is clearly libelous per se. The answer, while admitting the publication of the article, contains a clause commencing as follows: “Eighth. This defendant, further answering, upon information and belief charges and avers that the publication so made as aforesaid was, and is, true.” Then it goes on, and states certain facts which allege the truth of certain portions of the facts alleged in the libel. This allegation is not set forth as a separate defense to the action, is not alleged to be a justification, and the demurrer interposed by the defendant does not demur to it as a separate defense, but demurs on
p. 256
the ground that the allegations in said subdivision are only a repetition of the alleged libelous matter, and that the defense of justification, as alleged in the said subdivision of the amended answer, is insufficient in law. The facts alleged would be sufficient in mitigation of damages, and, assuming that the facts alleged are not sufficient as a justification, the allegation is not pleaded as a justification, or as a separate defense. We do not think that such an allegation of the answer can be demurred to. The plaintiff’s proper remedy was to apply to the court "to have the clause in question made more definite and certain, by alleging it as a separate defense of justification, or by alleging that it was pleaded in mitigation of damages, or by striking it out as irrelevant. From the ninth clause of the answer, it would appear that the allegation was inserted, not as a separate defense by way of justification, but as part of the ninth clause, of which it is made a part, and which is expressly pleaded as a partial defense and in mitigation of damages. It is well settled that, while the truth of a libel is a complete defense, it must be pleaded, if relied upon by way of justification or in mitigation of damages. See 13 Am, & Eng. Enc. Law, 394, 395, and cases therein cited. In the case of Tilson v. Clark, 45 Barb. 181 , it was expressly held that the obligation upon a plaintiff to demur, or make a motion to compel a defendant to make the answer more definite and specific, only applies where a defense is defectively stated. This allegation in the answer not having been pleaded as a separate defense, or by way of justification, containing facts which would be a good plea in mitigation of damages, and being connected with a plea in mitigation of damages, so as to be taken as a part thereof, we do not- think that the plaintiff could demur to the clause in question, and sustain such a demurrer by showing that the allegations were not a justification. The judgment appealed from must be affirmed, therefore, with costs, with leave .to withdraw demurrer on payment of costs of appeal and costs on demurrer below. All concur.