p. 146Max. Miller, Resp’t, v. Harry S. Brooks et al., App’lts. (2 cases.)(Supreme Court, General Term, Fifth Department,Headnote
Depositions—Examination before trial—Libel.An order for the examination of the plaintiff in an action of libel should not be granted for the purpose of enabling the defendant to prepare his answer, to consist of a justification of the charges and mitigation of-damages.
Appeal by the defendants, Harry S. Brooks and others, from-an order of the special term of Monroe county, bearing date the-29th day of June, 1891, vacating an order made at chambers April 13, 1891, directing the plaintiff,.Max. Miller, to be examined and his deposition taken before trial, pursuant to § 873 of the Code of Civil Procedure.
Frederick Collin, for app’lts; Ivan Powers, for resp’t.
The action is libel. The defense as foreshadowed in the affidavits will probably consist of a justification of the charges and mitigation of damages. As was stated by the learned judge at special term: “It can rarely happen-that a necessity can arise for the defendant to examine the plaintiff to enable him to ascertain whether he has a good defense to an action. This is especially so in an action for libel, because a libelous article should be published, if at all, only-after careful inquiry has shown it to be true.’’
The moving affidavit shows that the primary" object of the-
p. 147-order is to enable the defendants to prepare their pleadings, and that the evidence so obtained may be of benefit and assistance to them in preparing for the trial of the action. The accusation made against the plaintiff in the libelous article complained of is that the plaintiff, with the other parties referred to, had committed a crime, namely, the crime of grand larceny, and if the article as set forth in the complaint is the one actually published, the fact that such a crime was unequivocally charged admits of no doubt.
We think that this case is. governed by the decision of this court in Strakosch v. Press Pub. Co., 6 N. Y. Sup., 246; 25 St. Rep., 189 ; and Kinney v. Roberts, 26 Hun, 169 .
Order appealed from affirmed, with ten dollars costs, and disbursements of one action.
Dwight, P. J., Macomber and Lewis, JJ., concur.