
    Scofield et al. v. Demorest, (two cases.)
    
      (Supreme Court, General Term, First Department.
    
    December 2, 1889.)
    Pleading—New Mattee—Reply.
    Although an answer pleading truth in justification to an action for libel is “new matter by way of avoidance, ” within Code Civil Proc. N. Y. § 516, which provides-that “where an answer contains new matter, constituting a defense by way of avoidance, the court may, in its discretion, on the defendant’s application, direct the plaintiff to reply to the new matter, ” yet, where such answer consists of a. lengthy statement, partly of facts, and partly of evidence of facts, a great deal of" it being statements with regard to proceedings in a certain lawsuit which can easily be proved by the record, a motion to compel plaintiff to reply is properly denied.
    Appeals from special term, New York county.
    Actions for libel by Gerrit S. Scofield against W. Jennings Demorest, and! by Frank M. Scofield against the same defendant. Defendant answered in both actions, pleading truth in justification, and moved that plaintiffs be compelled to reply. Code Civil Froc. H. Y. § 516, referred to in the opinion, provides that “where an answer contains new matter, constituting a defense by way of avoidance, the court may, in its discretion, on the defendant’s application, direct the plaintiff to reply to the new matter.” Defendant’s motions-were denied and he appeals.
    Argued before Bartlett and Barrett, JJ.
    
      Norwood & Coggeshall, (Carlisle Norwood, Jr., of counsel,) for appellant.. Rabe & Keller, for respondents.
   Barrett, J.

These are actions for libel. The defendant justifies, pleading the truth of the entire libel. It must be conceded that, strictly speaking,, such justification is in the nature of “new matter by way of avoidance,” as. that expression is used in section 516 of the Code of Civil Procedure. The-plaintiff may rest upon proof of the publication. The presumption of innocence attaches until it is overthrown by the defendant. The allegation of' falsity is not traversable, and the defendant must plead the facts which constitute justification. Granting all this, we still think that this motion was-properly denied. It is not every case of confession and avoidance which calls-for the exercise of the discretionary power conferred by the section in question. Here the justification pleaded covers the entire history of a judicial controversy. It is a lengthy and detailed statement, partly of facts, partly of evidence of facts. It would be oppressive to put upon the plaintiff the burden of going minutely over this elaborate recital, and of admitting, denying, ignoring, or explaining every component part of it. It is, besides, quite unnecessary. A great deal of this “new matter” consists of statements with regard to the various proceedings in a lawsuit, the contents of affidavits, and the decisions of a court, all of which can, without inconvenience, be proved by the production of the record. The plaintiff should not be required to compare the papers on file with the averments of the answer, and then say whether such averments are accurate. Much of what the defendant asks amounts to just that. It is plain from the nature of the case and the circumstances disclosed that the defendant cannot well be surprised upon the trial by the way in which the plaintiff may seek to meet this new matter; and we agree with the learned judge at special term, that these motions were an attempt, in substance, to require the plaintiff to reply to the defendant’s evidence. The orders appealed from should therefore be affirmed, with $10 costs on each appeal, and the usual disbursements. All concur.  