
    William Roeber, Appellant, v. New Yorker Staats Zeitung, Respondent.
    
      Libel — its truth must be pleaded as matter of justification or in mitigation — making answer more definite and certain — demurrer.
    
    The truth of a libel is a complete defense; but to be available it must be pleaded by way of justification or in mitigation of damages.
    The complaint in an action alleged that the defendant published an article concerning the plaintiff which was clearly libelous per se. The answer admitted the publication, alleged upon information and belief that the publication was-true, and then stated certain facts which tended to show the truth of portions of the alleged libel. This allegation was not set forth as a separate defense, nor was it pleaded as a justification.
    The*defendant interposed a demurrer upon the ground that the allegations were only a repetition of the alleged libelous matter, and that, if it was to be deemed a justification, it was insufficient in law.
    
      Held, that a demurrer was not proper;
    That the plaintiff should have applied to the court to have the clause in question made more definite and certain by alleging it as a separate defense of justification, or by having it declared that it was pleaded in mitigation of damages, or by having it struck out as irrelevant;
    That, as the clause in question was connected with the next succeeding clause of the answer, expressly pleaded as a partial defense and in mitigation of damages, a demurrer thereto could not be sustained by showing that the allegations contained in the clause objected to did not constitute a justification.
    Appeal by the plaintiff, William Roeber, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of October, 1895, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiffs demurrer to the eighth paragraph of the defendant’s answer, and from said judgment as amended by an order made at the New York Special Term, bearing date the 31st day of October, 1895, with notice of an intention to bring up for review upon such appeal the decision of the questions of law made by the trial justice under date of October 14, 1895, and amended on the 21st day of October, 1895, and again amended on the 28th day of October, 1895, by an order made on said last-mentioned date.
    
      FramMm Pierce, for the appellant.
    
      Joseph G. Leri and Harry Percy Devoid, for the respondent.
   Ingraham, J.:

The complaint alleges the publication by the defendant of an article concerning the plaintiff which is clearly "libelous per se. The answer, while admitting the publication of the article, contains a clause commencing as follows: “Till. This defendant, further answering upon information and belief, charges and avers that the publication so made as aforesaid was, and is, true.” Then it states certain facts which tend to establish the truth of certain of the facts alleged in the libel. This allegation is not set forth as a separate defense, is not alleged to be a justification, and the demurrer interposed by the defendant does not demur to it as a separate defense, but demurs on the ground that the allegations in said subdivision are only a repetition of the alleged libelous matter, and that the defense of justification, as alleged in the said subdivision of the amended answer, is insufficient in law. The facts alleged would be sufficient in mitigation of damages, and assuming that the facts alleged are not sufficient as a justification, the allegation is not pleaded as a justification or as a separate defense. We do not think that such an allegation of the answer can be demurred to.

The plaintiff’s proper remedy was to apply to the court to have the clause in question made more definite and certain by alleging it as a separate defense of justification, or by alleging that it was pleaded in mitigation of damages, or by striking it out as irrelevant.

From the ninth clause of the answer it would appear that the allegation was inserted, not as a separate defense by way of justification, but as a part of the ninth clause, of which it is made a part, and which is expressly pleaded as a partial defense and in mitigation of damages. It is well settled that while the truth of a 'libel is a complete defense, it must be pleaded, if relied upon; by way of justification or in mitigation of damages. (See 13 Am. & Eng. Ency. of Law, 394, 395, and cases therein cited.)

In the case of Tilson v. Clark (45 Barb. 181) it was expressly held that the obligation upon a plaintiff to demur or make a motion to compel a defendant to make the answer more definite and specific, only applies where a defense is defectively stated. This allegation in the answer, not having been pleaded as a separate defense, or by way of justification containing facts which would be a good plea in mitigation of damages, and being connected with a plea in mitigation of damages so as to be taken as a part thereof, we do not think that the plaintiff could demur to the clause in question, and sustain such a demurrer by showing that the allegations were not a justification.

The judgment appealed from must be affirmed, therefore, with costs, with leave to withdraw demurrer on payment of costs of appeal and costs on demurrer below.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs, with leave to withdraw demurrer on payment of costs of appeal and costs on demurrer below.  