
    Emily H. Hathorn, Resp’t, v. The Congress Springs Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 19, 1887)
    
    1. Libel—Pleading—How justification should be pleaded—Code Civ. Pro., § 494.
    In an action for libel, when the truth of the libelous matter is intended to be relied upon as a defense, the particulars must be alleged. A general allegation that all the statements are true is bad on demurrer.
    2. Same—Mitigation of damages—What evidence admissible.
    Facts tending to prove the truth of the charges may be pleaded and proved in mitigation of damages. But evidence of circumstances in mitigation of damages is inadmissible unless pleaded in mitigation.
    Appeal from the order of the special term sustaining a demurrer to the second count in the defendant’s answer. No judgment has been entered upon the order sustaining the demurrer the parties consenting on the argument to a decision upon the merits of the same and to the same effect as if judgment had been entered upon said order.
    
      L. B. Pike, for app’lt; Charles C. Lester, for resp’t.
   Mayham, J.

The libel complained of in the complaint consists in charging the plaintiff with preparing water for analysis, as the water of Hathorn Spring, by adding ■fresh water and valuable salts thereto, and thus obtaining the analysis of different water from that produced by said .spring and thereby deceiving the public and patrons of said spring. The words claimed by the plaintiff to be libelous areas follows: In stating these facts we do not intend to implicate the learned chemist who did not procure the water himself (as he should) at the springs; who did not know how much fresh water was added to diminish the proportionate amount of the offending and gross salts to the water; or how much valuable salts were added before closing the bottles sent him.” The specific part of the answer to the above charge, which is contained in and constitutes a part of the second count, to which this demurrer is interposed, is in the language following:

“It is also true that the chemist referred to in said article did not procure the water himself from the waters of the spring as he should; that he did not know how much (if any) fresh water was added to diminish the proportionate amount of offending iron and gross salts to the water or how much (if any) valuable salts were added before closing the bottles sent to him.”

It will be seen that this answer is not an admission of the publication of the alleged libelous matter and a justification •on the ground that the allegation is true. It does not admit the words in the language of the charge, nor does it state facts and circumstances showing that the charge is true.

It is not, therefore, good as a full justification. Á justification in an answer must be as broad as the charge which it seeks to justify. Skinner v. Powers, 1 Wend. R., 451.

And this rule does not seem to have been abrogated by the Code. Wachter v. Quenzer, 29 N. Y., 552.

In this case Demo, J., says: “The Oode does not certainly allow the reiteration of the libelous words and an averment that they are true, without a statement of the facts showing them to be so.” A statement in the answer that the words are true would not be a justification and it would fall just as far short of being a statement of facts to be proved by way of mitigation. It would, therefore, be insufficient in law upon its face to constitute a defense, by way of justification of the charge; and as it is not alleged in mitigation and containing no statement of facts which ■could be proved in mitigation of damages, it becomes the proper subject of demurrer under section 494 of the Oode of Civil Procedure.

This count in the answer is defective as a justification in not stating the particulars and facts tending to establish the truth of the alleged libelous words.

When the truth of the libelous matter is intended to be relied upon as a defense, the particulars must be alleged, and a general allegation that all the statement are true is bad on demurrer. Wachter v. Quenzer, 29 N. Y., 647; Robinson v. Hatch, 55 How. R., 55.

Nor can this allegation be appplied as an allegation in mitigation ©f damages not having been pleaded as such.

It is true that facts tending to prove the truth of the charge may be pleaded and proved in mitigation of damages. But the circumstances in mitigation must be pleaded in order to be admissible in evidence. Code, section 165, N. Y., 527.

Evidence of circumstances in mitigation of damages is inadmissible unless pleaded in mitigation. Willover v Hill, 72 N. Y., 36.

We think the order of the special term, sustaining the demurrer, was right, and should be affirmed with costs.

Defendant should have leave to amend the answer on payment of costs.

Learned, P. J., concurs.

Landon, J.

I concur in the result. As a justification the answer is defective in not stating the facts tending to establish the truth of the alleged libel. As matter of mitigation of damages, it is defective in not stating that it is pleaded as a partial defense. Code Civ. Pro., § 508. Since ■ a defendant may set forth in his answer as many defenses as he has (section 507), I do not think it necessary for a defendant to admit the publication of the libel in order to set forth the single defense of its truth.  