
    Strakosch v. Press Pub. Co.
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Libel—Practice—Examination ot Witness before Trial.
    In an action for libel, defendant cannot procure an examination of plaintiff before trial, for the purpose of preparing a plea in justification, as such plea can only employ facts known and believed at the time of the alleged libel.
    2. Same.
    Code Civil Proc. N. Y. § 872, subd. 4, provides that, in order to obtain the examination of a witness before trial, it must be shown that his testimony is material and necessary for the applicant. Held, in an action for libel, where the affidavit of a third person showed that he could inform defendant of all facts necessary to frame a plea of justification, that defendant could not procure an examination of plaintiff before trial in order to enable him to frame such a plea.
    Appeal from special term, Hew York county.
    , Action for libel by Carl Strakosch against the Press Publishing Company. Defendant appeals from an order vacating an order for the examination of plaintiff before trial.
    Argued before Brady and Daniels, JJ.
    
      Be Lanoey Nicull, for appellant. H. M. Whitehead, for respondent.
   Brady, J.

This action is based upon an alleged libel. The defendant avers that the publication was true, and desires the examination of the plaintiff before trial in order to frame a proper plea of justification, which must be accurate and full in detail. But no facts and circumstances can be employed except such as were known and believed to be true at the time of the publication, (Kinney v. Roberts, 26 Hun, 166, and cases cited,) and as to these there can be no necessity for the examination or the plaintiff, being already known and believed. See case supra. This seems to be the rule in this class of actions. The answer may be an information and belief, and may therefore embrace all the features of the justification which were known and believed. This disposes of the appeal, without considering the plaintiff’s affidavit denying the truth of the statements in the libel contained. The law has properly declared that when libelous matter is published of a person the publisher cannot resort to the evidence of the person maligned, before trial, for the purpose of establishing a justification or facts in mitigation of damages. They should be known when the asserted libel was framed and believed, and must be established on the trial to avoid responsibility or to limit it. This rule imposes care, suggests scrupulous investigation, and regards and respects the rights of the person assailed. The order appealed from should be affirmed, with $10 costs and disbursements.

Daniels, J.

The action is for damages for the publication of a libel. The article alleged to be libelous was published in the Mew York World, and it related to the conduct and condition of what was called “The Clara Louise Kellogg English Opera Company.” The order for the examination of the plaintiff was obtained upon the ground that his evidence was necessary to enable the defendant to prepare and serve its answer, in which it was designed to allege the truth of the article relied upon as libelous. To entitle the defendant to obtain the evidence of the plaintiff for this purpose, subdivision 4, § 872, Code Civil Proc., required that it should be shown in support of the application that his testimony was material and necessary for the party making the defense in the suit. It was stated in the affidavit of the attorney that this examination of the plaintiff was necessary for, the framing of a proper answer by way of justification of the article. But this was a mistaken view of the position and situation of the defendant; for, by the affidavit of the correspondent on whose information the publication was made, it was shown to be the fact that he had made inquiries of persons connected with the company, and from them had obtained information that the company was in the condition in which it was described and stated to be in the article relied upon as tlie plaintiff’s ground of action. Upon rumors which reached the correspondent lie made investigations, and was informed of the several matters contained in the article leading to the statements as they were set forth in the paper. This correspondent was in the employment of the defendant, and, according to his affidavit, was in the condition to supply the defendant with all the information that possibly could be required for the framing and presentation of an answer setting forth the truth of the statements contained in the article; and, if the defendant shall be able to establish the fact that the statements contained in the published article were true, then that of itself is a legal defense to the action; and it will not be confined to the information obtained before the publication of the article by way of evidence to prove that defense. If the further defense is to be added, that circumstances existed, falling short of a justification of the article, which fairly induced the defendant to believe in the truth of its statements, that must, in a general sense, be limited to the matters which came to the knowledge of the persons in the employment of the defendant at or before the publication of the article. Kinney v. Roberts, 26 Hun, 166, 170. But the defendant can be subjected to no such restriction in the proof which may be produced to establish the truth of the publication. The affidavits fail to support the fact, without which the order could not be made, that the evidence of the plaintiff was necessary for the defendant before it could properly frame and serve its answer. The order was right, and it should be affirmed, witli $10 costs and the disbursements.  