
    MOODY v. LIBBEY.
    
      N. Y. Supreme Court, First Department; Special Term,
    1876.
    Pleading in Action fob Defamation.—Real Party in Interest.
    In an answer in an action for defamation, allegations that plaintiff is not the real party in interest, but the action is prosecuted by some one else in plaintiff’s name, are not irrelevant.
    
    To a cause of action for publishing a false, malicious, and irrelevant answer in an action, allegations that the action is still pending and undetermined, are not irrelevant.
    
    Sophronia Moody sued John Libbey and Lydia C. Libbey his wife, for defamation, alleging two causes of action. The first, slanderous words spoken by the wife defendant; the second, the malicious publication by her of a false, defamatory and irrelevant matter, in an answer in an action, by one Mason, against her.
    The "defendants answered separately. The wife’s answer, among other things, alleged, as a bar to the second cause of action, that “the action in which the answer, containing the alleged defamatory language occurs, is still pending and undetermined in said court and county, and that according to the ordinary course of business in said court and county, the time for trial has not arrived, and will not arrive for many months.” 
    
    It also alleged,, as a bar to both causes of action, “that the nominal plaintiff herein is not the real party in interest. That another is prosecuting this suit under the name of Sophronia Moody, and that the latter is merely lending her name to the real party in interest.”
    The answer of the husband, among other things, alleged, as a bar to both causes of action, “that Sophronia Moody, above named, is not the real party plaintiff in interest, and is not conducting this suit, and that the said suit was instituted, and has been conducted, from the commencement to the present time, by parties whose names do not appear as plaintiffs herein, as required by the statutes of this State” (Code of Procedure, § 111).
    
      Miller & Van Volkenburgh, for plaintiff, moved to strike out these matters, among others, as scandalous or irrelevant, or both.
    
      Chauncey B. Ripley, opposed.
    I. A very clear case must appear to support such a motion (Maloney v. Dows, 15 How. Pr. 261; Brockleman v. Brandt, 10 Abb. Pr. 141; Averill v. Taylor, 5 How. Pr. 476; 5 Sandf. 682).
    No action for libel lies pending a suit against a party by reason of a sworn answer interposed in defense (Starkie on Slander, Wendell’s Ed. p. 247 [* 248]; Weston v. Dobinet, Id.; 3 Bl. Com. 126; Astley v. Younge, 2 Burrows, 810, opinion of L’d. Mansfield). “It would be a great discouragement to suitors to subject them to public prosecutions, im respect of their applications to a court of justice; and that the chief intention of the law, in prohibiting persons to revenge themselves by libels,, or any other private manner, is, to restrain them from endeavoring to make themselves their own judges, and to oblige them to refer the decision of their grievances to those whom the law has appointed to determine them ’ ’ (1 Starkie, 242 [* 243], and cases there cited). Where would the end be, if it were allowable to bring suits on the basis of the present action ad infinitum f
    
    III. The fact that this suit is instituted and conducted by others than the nominal plaintiff herein, is good in defense to each cause of action, and in mitigation of damages. Section 111 of Code requires every action to be prosecuted by the real party in interest; that where the answer denies this a material issue is raised (Code, § 111). So held in an action on a note (Tamisier v. Cassard, 17 Abb. Pr. 187).
    No averment that plaintiff is not trustee, &c., can be required in this case, not being a case arising out of a contract, nor one to which section 113 of the Code could possible apply (10 How. Pr. 309; Code, § 113). Fleury v. Roget (5 Sandf. 646) is not in point, because in that case everything was admitted. A decision eight years later than 5 Sandford, by Judge Beady, holds the averment in question material (Arrangoiz v. Frazer, 2 Hilt. 244). The law of the State no longer permits actions to be prosecuted in the name of nominal plaintiffs.
    The moment that fact appears the action is ended (Eaton v. Alger, 57 Barb. 179; 47 N. Y. 345; Sanford v. Sanford, 55 N. Y. 725). Where this defense is set up in the answer, evidence to establish the same will be received on the trial (Savage v. Corn Exchange, &c., 4 Bos. 15). This is the true test (Follett v. Jewitt, 11 N. Y. Leg. Obs. 193).
    
      
       See also Samuels v. Evening Mail Asso., 6 Hun, 5. As to the indirect assignability of causes of action for torts, to the attorney of the plaintiff,—compare Coughlin v. N. Y. Central R. R. Co., 8 Hun, 136; Burling v. King, 2 Sup. Ct. [T. & C.] 545; Zogbaum v. Parker, 55 N. Y. 120; affi’g 66 Barb. 341.
    
    
      
       See Moulton v. Beecher, in this vol.
    
    
      
       It was also alleged, though, as a separate defense, that the words of that answer were true and relevant.
    
   Lawrence, J.

[After remarking that plaintiff had submitted no brief.]—I have come to the conclusion to deny the motion. Many of the matters sought to be stricken out by the plaintiff are good by way of justification, and those which are not, are good by way of mitigation, and as bearing upon the question of malice (Jeffras v. McKillop & Sprague Co., 2 Hun, 351; Bush v. Prosser, 11 N. Y. 347; Bisbey v. Shaw, 12 Id. 67; Steinman v. Clark, 10 Abb. Pr. 132).

Motion denied with $10 costs.  