Wuensch v. Morning Journal Ass'n , 38 N.Y.S. 605 ( 1896 )

Williams, J.:

Paragraphs 17 to 20, both inclusive, are a part of the second defense in the answer, and are alleged in justification of portions of the alleged libelous publication. They are proper allegations for this purpose as will appear from a mere reading of the publication and the allegations. They allege matters which defendant desires to prove, to show the truth of some of the matters published, and being proper for such purpose should not be stricken out even if they are in their nature scandalous.

Paragraphs 21 to 23, both inclusive, repeat these same allegations and add other allegations by way of mitigation of damages. They are clearly proper for this purpose, and under section 536 of the Oode, could not be proved unless alleged in the answer They should not be stricken out even if in their nature scandalous. It is not the fault of the defendant that he is obliged to insert allegations in his answer of matters he needs to prove on trial in the proper defense of the action.

Paragraphs 24 to 26, both inclusive, constitutes the fourth separate defense, and are alleged in reduction of damages. The facts alleged are not competent and could not be proved upon the trial for the purpose for which they are alleged. The allegations in paragraph 24 are of specific acts affecting the character of plaintiff occurring before the alleged libelous publication, and those in paragraphs 25 and 26 are of specific acts occurring after such publication. They are none of them competent to be proved in mitigation of punitive or exemplary damages, or in justification of the publication. They are not alleged as such but merely in reduction of actual or compensatory damages. The rule in this "class of actions is that if the publication is not justified, the plaintiff is entitled to recover his actual or compensatory damages in any event. There can be no mitigation of this kind of damages. Mitigation extends or relates only to punitive or exemplary damages. A party, if entitled to such actual or compensatory damages, must be awarded such damages as the jury may find naturally and necessarily flow from the publication, for in jury to the plaintiff’s reputation and character. In the absence of proof as to what the plaintiff’s character was before the publication, the jury must assume that the plaintiff was possessed of a fair character. The defendant would have the right to attack Ms character, and show it was not such as the law would otherwise presume it to be, but he could only do so in two ways.: First, by cross-examination of the plaintiff himself if he should be used as á witness, and such cross-examination might extend to any specific acts occurring before- or after the publication down to the trial, as bearing upon his credibility-as a witness,- as well as upon his character, for injury to which damages are sought to be recovered.

■ Second, by calling witnesses as to the general reputation of the plaintiff at and .prior to the time of • the alleged publications. Witnesses could not be called, however, to prove specific acts on the part of the plaintiff occurring before or after the publication, either by way of attacking his credibility as a witness, or his character, for damages to which a recovery is sought. It follows, therefore, that the facts alleged in this fourth- separate defense are -improper and should have been stricken from the answer. Very, likely this separate defense was .subject to demurrer, and if there was no question made as to the matter being scandalous, the motion to strike out might properly have been denied on the ground that demurrer was the only proper remedy to relieve the answer frozn the allegations. But being of the character known as libelous, we think the court should have applied this remedy by motion to strike out, in order to remove the matter from the- record.

The order appealed from should be modified so as to provide for the striking out of the paragraphs 24 to 26, both inclusive, and as modified affirmed, without costs.

Yan Brunt, P. J., Barrett, Rumsbt and Patterson, JJ., concurred.

Order modified as directed in opinion and as so modified affirmed1, without costs.