McKane v. Brooklyn Citizen — 24 N.Y. St. Rep. 695

Majority

p. 695

John V. McKane, Resp’t, v. The Brooklyn Citizen, App’lt.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Pleading—Libel—When crime charged—What answer must state.

Where, in an action for libel, portions of the libelous article impute the commission of crimes by deiendant, and the answer is a justification, Held, that the answer should state time, place and circumstances with a.

p. 696

degree of particularity which would show upon its face that an offense against the law had teen committed, substantially as an indictment would charge facts constituting a crime.

3. Same—Sufficiency of answer.

A statement in the answer that the words are true, would not be a justification, and would fall just as far short of being a statement of facts to be proved by way of mitigation.

3. Same—Truth may bij shown, when.

The Code, in respect to mitigation, does not change the rules of pleading, and when a publication is made which is libelous, the publisher can prove facts tending to show the truth of the charge when the crime is not absolutely established by proof.

Appeal from an ¡order striking out certain parts of defendant’s answer, j 1

James and Thomas H. Troy, for app’lt; Morris & White-house, for resp’t. ,

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 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 offence against the law had been committed, substantially as an indictment would charge facts constituting a crime. Andrews v. Van Duzer, 11 J. R., 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 loss, 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 (£‘ a 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 rules of [pleading, but when a publication was made which was [libelous, the publisher can prove facts tending to show thp 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.

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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.

All concur.