Ormsby v. Douglas — 12 N.Y. Super. Ct. 665

Majority

p. 665

Ormsby v. Douglas.

Headnote

"When the answer to a complaint, in an action of slander, denies each and every allegation of the complaint, and also justifies, by alleging that the plaintiff was guilty of the misconduct which the words impute, the court will not, on motion, direct one of the defences to be stricken out, nor coerce the defendant to elect between them, and rely on one alone. Especially, this will not be done, when the defendant swears that the answer is true, for it may be true, that he did not speak the words charged, and that the plaintiff committed the offence they impute. His right to justify does not depend upon his admitting the speaking of words which he never did speak. The right is absolute to set up as many defences as he may have.

At Special Term,

May 5, 1856.

The plaintiff moves that the defendant elect, between certain defences set up in his answer, by which he will abide, and that the others be stricken out, or in default of such election, that certain defences referred to, in the notice of motion, be stricken out. The complaint states the speaking of slanderous words. The answer denies each and every allegation of the complaint, and also sets up as a defence, that the plaintiff was guilty of the misconduct which the words impute. The motion is made on the theory, that a denial of the speaking of the words, and an allegation that the plaintiff is guilty of the misconduct they impute, are inconsistent with each other, and that the defendant should be coerced to rely on one of these defences alone The defendant makes affidavit that the whole answer is true.

Pike & Galpin, for plaintiff.

Fullerton & Dunning, for defendant.

When the answer to a complaint, in an action of slander, denies each and every allegation of the complaint, and then sets up a justification, the court will not compel a defendant to elect one of the defences, and abide by it, and strike out the other. They are not necessarily inconsistent; both may be true.

p. 666

The court will not, on motion, decide that both are not true, when they may be, and the defendant swears that they are. A defendant has an absolute right to set up as many defences as he has, and if he fails, by the death, absence or imperfect memory of his witness, to prove one, it is no reason why he should not be permitted to have the benefit of the other.

It may be true,-that a defendant never spoke the words ohárgéd, and yet it may be true that a plaintiff has committed the offence they impute, and that the defendant can prove it. • It may not betrue, that the defendant spoke the words charged, and yet the misunderstanding, misrecollection, or erroneous impression of those who heard him, may result in testimony establishing, prima, facie, that he did. He may justify, if he had spoken them; and if contrary tó defendant’s conviction of the truth, it shall be proved'he'did speak them, when he did not speak them, the defendant should be allowed to justify. In order to justify, he should not be compelled to- expressly a-dmit that he spoke words which he can conscientiously swear he never did' speak: • The only question submitted being, whether-an answer, in such an action, which denies all the allegations of the complaint, can also be permitted to contain the defence of justification, and .being of the opinion that it can, the motion is denied, but without costs to either party.