
    James P. Burns, Pl’ff., v. Joseph A. Monell, Def’t.
    
      (City Court of New York, Special Term,
    
    
      Filed October 21, 1889.)
    
    Slander-Pleading.
    In action for slander in calling the plaintiff “ a perjuring thief,” the answer admitted making the charge, denied that it was false, and alleged that in a civil action between them plaintiff wilfully and corruptly testified falsely, in consequence of which the justice rendered judgment in his favor. Held, that while the denial of the falsity of the charge created no issue, the plea of justification, if proved, furnishes a complete defense and that judgment could not be ordered on the answer.
    
      The action is _or slander in charging the plaintiff, in the presence of others, with being “ a perjuring thief.’' The defendant by his answer admits making the charge alleged, denies that it was false, and alleges that in the first district court, before Justice Morton, the plaintiff testified falsely in an action wherein he was plaintiff and the defendant herein defendant, in consequence of which the justice decided in favor of the plaintiff and against the defendant herein. The plaintiff moves for judgment on the answer, with the proper provision for assessing damages.
    
      James Flynn, for pl’ff; H. C. Botty, for def’t.
   McAdam, C. J.

The denial that the charge was false creates no issue. The plaintiff was presumably innocent of crime and required no evidence to prove his innocence in the first instance, for presumption is proof. The defendant undertook ta justify by alleging in his answer that the charge was true. If he had done this and nothing more, the defendant, after proving his plea, would have destroyed the presumption previously existing and required proof from the plaintiff that he was innocent. But the defendant goes further and alleges that the perjury was committed in an action to which the parties to the record here w'ere likewise parties there. The justice judicially found that the plaintiff told the truth and had consequently given judgment in his favor. But this finding does not make the question of perjury res adjudícala either in a civil or criminal proceeding, for that was not the issue litigated and decided there. The justification is certainly as broad as the charge, is stated with the precision required in an indictment, and if legally proved furnishes a complete defense. The defendant did not call the plaintiff a “thief,” but a “ perjuring thief,” meaning a person who robs by means of perjury, and not by means of larceny or other act, so that the crime of perjury is alone comprehended by the charge.

The facts are not pleaded in mitigation, because the allegation of the answer is that the plaintiff’s testimony was “ willfully and corruptly false.” Such a charge would maintain an indictment for perjury, whereas if these words had been omitted the plea would have been regarded as in mitigation only. Spooner v. Keeler, 51 N. Y., 527.

The defendant’s plea is a bold if not dangerous one, for the defendant has no right to take away the character of the plaintiff unless he is in a position to prove the truth of the charge he has made and under oath reiterated. See Hopkins v. Smith, 3 Barb., 599; Downing v. Brown, 3 Col, 571; Spruil v. Cooper, 16 Ala., 791; Ransome v. Christian, 56 Ga., 351; S. C., 49 id., 491; Steinman v. McWilliams, 6 Barr, 170; Crandall v. Dawson, 1 Gilm., 556. The defendant has seen fit to call his justification a plea “in mitigation,” but this is a misnomer, for it sets up a corhplete and not a partial defense to the action. If the answer is true, the plaintiff ought to be in state-prison rather than a suitor claiming damages in a court of justice.

It follows that the motion for judgment must be denied, with ten dollars costs to abide the event  