Gorton v. Keeler , 1868 N.Y. App. Div. LEXIS 46 ( 1868 )

By the Court, James C. Smith, J.

This is an action for slanderous words imputing to the plaintiff the crime of perjury. The only questions in the case arise upon the offer of the defendant, on the trial, to prove in justification of the charge, and also in mitigation of damages, the facts set out in the answer. The offer was overruled, and, I think, properly.

The substance of the answer is that in a certain suit theretofore pending before a justice of the peace, the plaintiff was sworn as a witness, and gave testimony, material to the issue,'which was untrue; and that whatever the defendant said of the plaintiff had exclusive reference to such testimony.

The matter thus pleaded and offered to be proved, was clearly insufficient as a justification, because it did not contain an averment that the plaintiff knew the testimony given by him to be false, or that he testified corruptly. In other words, the averments in the answer might be true, and yet the plaintiff be innocent of the crime of perjury.

The offer was equally insufficient for the purpose of mitigating damages. Mitigating circumstances are those which tend to disprove malice. The offer was simply to prove the allegations in the answer. The answer does not aver the absence of malice. It does not allege that by reason of the facts "and circumstances set forth, the defendant believed, or had reason to believe, at the time when the charge was made, that it was true. For aught that is alleged in the answer, the charge was made with a deliberate purpose to injury and defame the plaintiff. The circumstances set out in the answer may have had a tendency to induce in the mind of the defendant a belief that the plaintiff had committed perjury, but if they did, in fact, create such belief, the defendant should have alleged it in his answer. Fot having done so, the testimony was properly excluded, when' offered in mitigation.

This ruling is not a departure from the doctrine of the reported cases. In Bush v. Prosser, (1 Kern. 347,) the answer, in stating the circumstances relied on in mitigation, alleged that “ whatever was said by the defendant in relation to the matters in the complaint, was said without any malice towards the plaintiff or designed to do him injury in his good name or otherwise, but the same was said in kindness to the plaintiff personally, and to the son of the defendant hy way of remonstrance, he then being a minor.”

In Bisbey v. Shaw, (2 Kern. 67,) no question was made as to the sufficiency of the answer. The testimony offered by the defendant, by way mitigation, was received without objection. The questions, on which the case turned, arose on the charge of the judge, and involved the effect to be given to the circumstances proved- by the. defendant and relied upon by him to mitigate the damages. But the answer went much further than the one in the present case. The facts stated in the answer were, that the plaintiff had secretly and fraudulently taken and carried away corn belonging, in part, to the defendant, under circumstances which induced the plaintiff himself to believe that the taking was larceny; and that he declared that belief by confessing that he had stolen the property. “ On these facts” said Buggies, J. delivering the opinon of the court, “ the jury might well have found that if the plaintiff himself thought he had stolen it, the defendant might honestly and without malice have believed so, when he spoke the words complained of as defamatory.”

The ruling made at the circuit, if adhered to by the courts, will have a salutary effect in establishing a criterion by which an answer setting up mere mitigating circumstances may be distinguished from one setting up a justification. Under section 165 of the Code, an amphibious form of answer has sometimes been resorted to, under which, at the circuit, the party interposing it, first attempted to prove a justification, and failing in that, claimed that the evidence should be received in mitigation. This practice, if tolerated, would give a defendant the benefit of either defense, or both of them, at his option, without apprising the plaintiff of the ground to be taken against him. To remedy this mischief, the Superior Court of Hew York city has held in several reported cases, on demurrer, that an answer setting up mitigating circurnstances under section 165, must state that they will be given in evidence, solely in mitigation of damages; since otherwise the plaintiff has a right to believe that they are relied on as a bar to his action, and upon that ground may justly demur to them. (4 Sandf. 668. 5 id. 54, 264.) But with all due respect, there is no warrant for holding that an answer which sets up facts constituting a good defense must also state for what purpose proof of such facts will be offered at the trial. Merely giving a pleading a name, does not fix its character. Under the Code, facts, only, are to be pleaded; their legal effect is not proper matter of pleading. The only test of the sufficiency of a pleading is whether the facts alleged constitute a good cause of action or defense. A partial defense, as well as a complete bar, may be set up in an answer. And under section 165, circumstances, by way of mitigation, (which are a partial defense,) may be pleaded with or without a justification. (Bush v. Prosser, sup.) But these- two defenses are entirely distinct in their nature, and if the pleader sets out the issuable facts constituting them, and nothing more, neither of them will be mistaken for the other. In pleading circumstances which are claimed to be proper in mitigation of damages, for the reason that they induced the defendant to believe that the charge made by him, complained of by the plaintiff, was true, the fact of such belief, and that it was so induced, is an essential one, and should be distinctly alleged. But such an averment would be improper in an answer setting up a justification. An answer, in justification, necessarily insists upon the truth of the charge, and it must allege facts showing that the plaintiff is guilty of the offense or disreputable conduct imputed to him—but with the motive of the defendant in making the imputation, it has nothing to do. On the other hand, an answer, in mitigation impliedly admits that the charge was unfounded but denies that it was made maliciously; and where such answer undertakes to set up that the charge was made in a belief of its truth, it must allege, not only circumstances tending to produce such belief, but also the fact that such belief, so produced, existed in the mind of the defendant, when he made the charge.

[Monroe General Term, June 1, 1868.

E. D. Smith, Johnson and J. C. Smith, Justices,]

The motion for a new trial should be denied.

Ordered accordingly.