Zilver v. Copper ( 1902 )

Gaynob, J.:

The action is for damages for alleged slander in that the defendant said' to divers persons that the plaintiff stole, diamonds from a company of which the defendant was a director.

The answer is of that unscientific and illiterate kind which has come to be altogether too common in our learned profession. It consists of three so-called defences. The first consists of a series of denials, the pleader evidently supposing that in the nomenclature of .pleading a “ denial ” is a “ defence ” (Burkert v. Bennett, 35 Misc. Rep. 318). Section 494 of the Code of Civil Procedure, which allows a demurrer to a defence, but not to a denial, illustrates the difference between a denial and a defence.

But we have to do here with the second and third defences. The second purports to be both a defence and a partial defence. It does not plead the truth, i. e., that the plaintiff did steal the diamonds, which would be a defence; nor any facts connected with the slander which would go to rebut malice and thereby prevent or mitigate smart money damage, which would be what is known as a partial defence, i. e., a defence in mitigation of damages only. On the contrary, it is quite a long rigmarole of other things meant to be more or less disparaging to the plaintiff, and alleged to have been told to the defendant by employees of the company; and finally comes the following: “ and on one occasion this defendant saw the brother of this plaintiff, who was employed by the company, take at least three stones, that is uncut diamonds, from a box of uncut diamonds and place them in his pocket and leave the room; and at the time the said diamonds were taken the plaintiff was within three feet of his said brother and looking directly at the box of diamonds, and the said diamonds were never returned or accounted for.” This is very far short of charging that the plaintiff stole the diamonds, or even that he saw his brother steal them, or even take them, if that would suffice. It is evidently no plea of the truth in justification; nor can it. be a plea in mitigation, i. e., in disproof of malice, so as to mitigate or prevent smart money damage, for it is not pleaded that the defendant believed that the diamonds were stolen by the brother and that the plaintiff saw the theft and participated in it or was privy to it, and that the defendant therefore made the charge of larceny alleged in the complaint against the plaintiff in good faith.

The so-called third defence is meant as a plea of privilege, i. e., that the defendant without malice and believing them to be true stated the things, mentioned in the second defence as having been told to him by the said employees, to the treasurer of the company and another person financially interested in the company.

But no plea of privilege is needed in respect of these things. The action is not based on them at all, but on a distinct charge of theft. The plea to be relevant at all must be that the defendant stated the charge of theft to the treasurer and the other interested person.

The demurrer is sustained with costs.