
    Edward Dinkelspiel, Plaintiff, v. The New York Evening Journal Pub. Co., Defendant.
    (Supreme Court, New York Special Term,
    December, 1903.)
    Libel — For publishing that the plaintiff had admitted that he had been expelled from a club for cheating at cards — Motion to strike out parts of the answer — Denial improper in a defense—When malice need not be denied in a defense of privilege — Partial defense in mitigation and reduction of damages — Offer to publish a retraction — Practice where a pleading is materially reformed by striking out parts of it.
    Where, in an action of libel for maliciously publishing testimony alleged to have been given by the present plaintiff as a witness in an action for a divorce between third parties and in which testimony he was alleged to have admitted that he had been expelled from a club for cheating at cards, the defendant corporation answers setting up, first, the defense of privilege and, secondly and separately, as a partial defense matter in mitigation and also, in reduction of damages, the first defense cannot properly commence by denying each and every allegation of the complaint, except that the defendant is a corporation, and this because a general denial is not a defense and cannot be pleaded as such.
    Denials of each and every allegation of the complaint cannot be justified as required by the complaint’s allegations of malice, as malice need not be denied in a defense of privilege where the words published are actionable per se — malice being presumed in such ease.
    Denials of each and every allegation of the complaint are not a proper part of the partial defense in mitigation and reduction of damages, but the defendant may therein deny that the publication was malicious.
    Where the defendant by not expressly denying admits the'publication it may therein restate, by reference thereto, the testimony alleged to have been given at the trial of the action for a divorce, and incorporated in the first defense, and this because it may be relevant to show the source of the matter published.
    The fact that the plaintiff is alleged to have admitted, in a part of that testimony, that he had acted as a spy upon a friend’s wife to secure evidence against her cannot be pleaded in mitigation of damages as it is not relevant to impeach the plaintiff’s character or negative malicious motive, and therefore he is entitled to have stricken out of the partial defense a statement of the time and manner of his having acted as a spy.
    
      Mitigating circumstances set up to negative malicious motive must have been known to the defendant at the time of the publication and must have induced a belief in its truth.
    An allegation" of the partial defense that a committee of the club tried the plaintiff for and acquitted him of the charge of cheating at cards may be relevant upon the question of damages and •cannot be stricken out.
    An offer of the defendant to publish a retraction of the charge, apparently made before the commencement of this action, may be pleaded by the defendant in the partial defense and should not be stricken therefrom.
    Where a pleading is materially reformed by striking out parts of it the order to strike out should direct service of an amended answer.
    Motion to strike out parts of an answer for libel.
    Paul L. Kieman, for plaintiff.
    Clarence J. Shearn, for defendant.
   Clabke, J.

The action is to recover damages for an alleged libel published by the defendant in reporting part of the testimony given by the plaintiff while a witness in an action for divorce in this court. The words complained of are as follows : “ Dinkelspiel also admits club expelled him for cheating at cards. * * * Were you expelled from a club in the upper part of this State for cheating at cards? A. Yes, sir.” Motion is made to strike out as irrelevant and redundant several paragraphs of the answer which consists of a defense of privilege and a plea in mitigation and reduction of damages. The answer begins by alleging “As a first defense: 1. That the defendant denies each and every allegation contained in the complaint, except,” then follows an admission that the defendant is a corporation. Paragraph 2 sets out the testimony given at the trial. Paragraph 3 contains the full report of the testimony published by the defendant. Paragraph 4 alleges that the article is a substantially true report, was published without malice and that the publication was privileged. Plaintiff moves to strike out paragraph 1. An answer must contain (1) a general denial or specific denial; (2) a statement of any new matter constituting a defense or counterclaim. Code Civ. Pro., § 500. A general denial is not a defense and should not he pleaded as such. Stieffel v. Tolhurst, 55 App. Div. 532; Cruikshank v. Press Pub. Co., 32 Misc. Rep. 164; affd., 59 App. Div. 620; State of South Dakota v. McChesney, 87 Hun, 293. The defendant urges that it is necessary that these details should stand because he must plead all necessary allegations in each defense. It is well settled that each separate affirmative defense must be treated as a separate plea, must be complete in itself, and that every allegation of the complaint not denied therein is admitted. Douglass v. Phenix Ins. Co., 138 N. Y. 209; Eells v. Dumary, 84 App. Div. 105. But the general denials alleged are not a necessary or proper part of the defense of privilege. Privilege admits the publication and justifies the same as expressly authorized by the Code of Civil Procedure, § 1907. The defendant contends that it is necessary to deny the allegation of malice. It has been held that malice is presumed when words are actionable per se, and, although expressly alleged in the complaint, need not be denied in a defense of privilege. Robinson v. Hatch, 55 How. Pr. 55. If such denial be necessary in the statutory defense the defendant is ' not prejudiced by striking out paragraph 1, for it is alleged in paragraph 4 that the article “was published without malice.” A repetition of this denial is clearly redundant. The “ separate and partial defense and both in mitigation and reduction of damages ” begins with paragraph 5, which plaintiff moves to strike out. This paragraph incorporates by reference paragraphs 1 and 2. The general denials in paragraph 1 are not properly a part of the plea in mitigation and reduction of damages, but the defendant may deny that the publication was malicious. The defendant in this plea, by not expressly denying, admits the publication, and, as it may be relevant to show the source of the matter published, it should be permitted to restate the contents of the testimony contained in paragraph 2, and it may do so by reference. White v. Koster, 89 Hun, 483, 485. In part of this alleged testimony the plaintiff admits' that he acted as a spy upon a friend’s wife to secure evidence against her. In paragraph 6 the defendant sets forth the time and manner of plaintiff’s acting as a spy. The plaintiff moves to strike this out. In an action to recover damages for personal injury the defendant is precluded from proving mitigating circumstances unless they are set forth in the answer. Code Civ. Pro., § 536. For this reason it has been held that: “ The rules by which the sufficiency of pleading is ordinarily determined, namely, materiality and relevancy, cannot be applied in all their strictness to a partial defense by way of mitigating circumstances.” Bradner v. Faulkner, 93 N. Y. 515; American Farm. Co. v. Rural Pub. Co., 78 App. Div. 268; Morgan v. Bennett, 44 id. 323; Palmer v. Palladium Printing Co., 16 id. 270. In Hatch v. Mathews, 85 Hun, 522, the court says: “ Where there is a semblance of a cause of action or a defense set up in a pleading its sufficiency cannot be determined on motion to strike it out as redundant or irrelevant. Walter v. Fowler, 85 N. Y. 621; Hagerty v. Andrews, 94 id. 195. Such a motion should be granted only where no doubt exists of the irrelevancy charged and where there is evidence that its retention would embarrass the opposite party.” In view of the care which should be exercised by the Special Term in entertaining motions to strike ■ out allegations in a plea of this character, I have searched for authority and looked for reasons on which the allegation might be deemed relevant. I am unable to find any. In my opinion it is clearly irrelevant, and as the defendant could refer to it . upon the trial in the opening of counsel. (McFadden v. Journal Assn., 28 App. Div. 512), it would be prejudicial to the plaintiff and must be stricken out. “ In an action for defamation two classes of facts are pleadable and provable in mitigation of damages: First, such as impeach the character of the plaintiff; secondly, such as tend to negative the malicious motive of the defendant.” Witcher v. Jones, 17 N. Y. Supp. 491; affd. on opinion below, 137 N. Y. 599. The fact that the plaintiff had at a certain time and in a certain place _ spied upon another man’s wife to secure evidence against her may not be shown to reduce damages by attacking the character of the plaintiff. It is the long-established rule that in reduction of damages for libel the defendant may show the general bad character of the plaintiff, but may not show particular instances of misconduct. Root v. King, 7 Cow. 613; Hilton v. Carr, 40 App. Div. 491; Wuensch v. Morning Journal Assn., 4 id. 110; Greenl. Ev., § 55; Townsh. Sland. & Lib. (4th ed.), §§ 406-408. It is, therefore, clear that the plea is not relevant to impeach character. It is equally clear that it is not relevant to negative malicious motive. That plaintiff acted as a spy does not tend to prove the truth of the alleged libel of expulsion for cheating at cards. It is not a partial justification. In this plea the defendant only admits the publication set forth in the complaint, namely, that plaintiff was expelled. The whole newspaper article is not set forth and there is no reference to any publication that plaintiff acted as a spy. The allegation is in no way connected with or bears upon the defamatory charge. But even Were the whole article published, before the court, the facts alleged in this paragraph would be irrelevant, for it does not appear that they were known to the defendant at the time of publication. Mitigating circumstances set up to negative malicious motive must have been known to the defendant at the time of the publication and induced a belief of its truth. Mattice v. Wilcox, 147 N. Y. 634; Hamilton v. Eno, 81 id. 116; Morse v. Press Pub. Co., 63 App. Div. 64; Townsh. Sland. & Lib. (4th ed.), §§ 361, 604. The plaintiff - also moves to strike out paragraph 7, which alleges that charges were preferred against the plaintiff for cheating at cards, that he was tried by committee of the club, and that the committee announced its decision that the charges had not been proven. This bears directly on the subject-matter of the alleged libel and may possibly be relevant on the subject of damages. There being a -question as to its relevancy, the court will not strike it out. For the same reason the motion to strike out paragraph 11, in which defendant alleges that it offered to publish a retraction, is also denied. In the -case relied on by the plaintiff (Turton v. New York Recorder Co., 144 N. Y. 151) it is held that an offer to -retract, made seventeen day after commencement of the action, may not be shown in mitigation of dam-ages. Ho case is submitted wherein it is held that an offer to retract, before the commencement of the action, would not be admissible. It does not appear from the allegation in the answer whether the offer was made before or after the commencement of the action, and there being doubt as to its relevancy the pleading must stand. The motion is granted to strike out paragraphs 1 and 6, and paragraph 5 in so far as it reiterates the allegations in paragraph 1, with the exception of a denial that the publication was malicious. The motion to strike out the remaining part of paragraph 5 and paragraphs 7 and 11 is denied. As the pleading is materially reformed by striking out parts, the order should direct service of an amended answer (Waltham Mfg. Co. v. Brady, 67 App. Div. 102) ten days after service, of order. Settle order in conformity herewith on notice. Ho costs.

Ordered accordingly.  