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McKane v. Brooklyn Citizen

6 N.Y.S. 171 Court N.Y. Gen. Term Decision date 1889-07-02 English

Delivered by Barnard, P. J.

Contents

Majority

p. 171
McKane v. The Brooklyn Citizen.
(Supreme Court, General Term, Second Department.
July 2, 1889.)

Headnote

1. Libel and Slander—Pleading—Justification.
In an action for libel, consisting of specific charges of bribery and extortion, averments in the answer to the effect that plaintiff holds or held several town offices, and that he negligently and willfully permitted the law and his official duty to be unexecuted, and that he even assisted in violating the law. are not sufficiently specific for a justification.
2. Same—Mitigation.
Neither are they good in mitigation.
Appeal from special term, Kings county.
This was an action for libel brought by John T. McKane against the Brooklyn Citizen, the libelous matter charged being that plaintiff had been guilty of taking bribes in his capacity of supervisor of the town of Gravesend, and of other acts of corruption and fraud. Defendant appeals from an order striking out portions of its answer as irrelevant.
Argued before Barnard, P. J., and Dykman, J.
J ames <& Thomas H. Troy, for appellant. Morris & Whitehouse, for respondent.

The complaint avers a publication by defendant of language alleged to be libelous. Portions of the libelous article or communication impute the commission of crimes by defendant. One is quite specific. The answer avers that the article was published as a communication from one Tilson. The specific charge of crime is not justified specifically. A justification must specify facts tending to show the truth of the charge. A general averment of the truth of the libel is not a proper pleading, either before or after the Code. Tilson v. Clark, 45 Barb. 178 . The answer should state time, place, and circumstances with a degree of particularity which would show upon its face that an offense against the law had been committed, substantially as an indictment would charge facts constituting a crime. Andrews v. Vanduzer, 11 Johns. 38 . Applying this principle to the portion of the answer objected to and stricken out, the order was right. The answer avers that the plaintiff holds or held several offices in the town of Gravesend, and that he negligently and willfully permitted the law and his official duty to be unexecuted, and even assisted in violating the law. No specific instance is given in any portion of the voluminous parts of the answer which are the subject of the motion. As a justification, therefore, the answer is not good. Neither is it good in mitigation. “Statement in the answer that the words are true would not be a justification, and it would fall just as far short of being a statement of facts to be proved by way of mitigation. ” Wachter v. Quenzer, 29 N. Y. 547 . The Code in respect to mitigation was not designed to touch the rule of pleading, but when a publication was made which was libelous the publisher can prove facts tending to show the truth of the charge, when the crime is not absolutely established by the proof. The same particularity in pleading was called for. In no other way can an issue be raised, either as to facts showing justification, or as to facts showing motive, as in mitigation, to be considered. Where an answer contains matter which will not justify proof on this, then it may be stricken out, on notice, as irrelevant. The order should be affirmed, with costs and disbursements.

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