Mattice v. Wilcox — 36 N.Y. St. Rep. 914

Majority

p. 914

Burr Mattice, Resp’t, v. Henry Wilcox, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 20, 1891.)

Headnote

1. Libel—Attobneys.

To publish concerning an attorney at law an article saying: Make him. (the plaintiff) village attorney, so that any person that gets injured on the ice will be able to get large damages, is libelous.

3. Same—Justification—Demubbeb.

The answer alleged in justification that plaintiff had been attorney for the village in actions for'injuries caused by icy and defective streets,- in

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which the plaintiffs recovered judgments for $1,000 and $4,000, respectively. Held, that this constituted new matter under § 404 and was demurrable; that as it was not alleged to be a partial defense, it must be tested as a complete defense, and as such was defective, because not coextensive with the charge in the publication.

Appeal from a decision and judgment thereon entered in Otsego county, sustaining a demurrer to the second defense in the defendant’s answer. Plaintiff’s complaint alleges “ since September, 1879, he has been an attorney and counsellor at law engaged in the business of his profession as a means of livelihood in the village of Oneonta, Otsego county, 27. Y., and has been for about two years last past, and is now, attorney for the village of Oneonta, 27. Y.” It then sets out the publication made by defendant, as follows: “ Make Burr Mattice attorney for the village, so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village,” and avers, “ that said defendant in said libel referred to meant the plaintiff in this action, and did by said libel charge and intend to charge the plaintiff with want of knowledge, care and skill in his professional capacity as a lawyer, and with being negligent, dishonest and corrupt in his said professional capacity.”

By his second defense, the defendant states that he “alleges and will prove, as matters of justification of publishing said alleged articles, that Burr Mattice and his partner, W. J. Palmer, did commence an action against said village to recover damages for one Cunningham for injuries caused by falling on icy sidewalks, and a judgment for over $1,000 was obtained in said action against said village; that while said action was pending, said Mattice claimed to be retained by said village as attorney; that about the same time another action was tried against said village, in which the plaintiff in said action recovered a verdict of $4,000 and costs, for injuries received because of defective streets, the said Mattice acting as one of the attorneys for said village.”

F. B. Gilbert, for app’lt; William H. Johnson, for resp’t

Plaintiff in a plain and concise manner has stated the facts constituting his cause of action. Section 535 provides that a complaint in an action for libel need not state any extrinsic fact for the purpose of showing the application to the plaintiff of the defamatory matter, “ but the plaintiff may state generally that it was published or spoken against him.” We think it was permissible to the plaintiff to demur to the second count of the defendant’s answer. Section 494 of the Code provides, viz.: “ The plaintiff may demur to a counterclaim or a defense consisting of new matter contained in the answer on the ground that it is insufficient in law upon the face thereof." We think the allegations contained in the second defense constitute new matter under the rule prescribed by the Code. See Code of Civ. Pro., §§ 500, 494.

In Thompson v. Halbert, 109 N. Y., 329 ; 15 N. Y. State Rep., 513, it was held, viz.: “ Where new matter is set forth in an answer, and it is not expressly stated therein to he a partial defense, as prescribed by the Code of Civil Procedure, § 508, it must be

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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 re-affirmed in Hathorn v. Congress Spring Co., 44 Hun, 608 ; 8 N. Y. State Rep., 511. We think the justification is defective in not stating the particulars and facts tending to establish the truth of the alleged libellous 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 rtile 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 ” ; same case, p. 405 ; Bergmann v. Jones, 94 N. Y., 52 . In Cruikshank v. Gordon; 48 Hun, 308 ; 15 N. Y. State Rep., 897, 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. Commercial Advertiser Association, 46 Hun, 505 ; 12 H. Y. State Rep., 649, 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. Hone other seems possible.” The learned counsel for the appellant calls our attention to Kingsbury v. Bradstreet, 116 N. Y., 211 ; 26 N. Y. State Rep., 520, but in that case “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 that 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-

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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 the appellant to amend his answer upon payment of the costs of the demurrer and of the appeal.

Mártir and Merwin, JJ., concur.