
    WILLIAM PERZEL, Appellant, v. SINCLAIR TOUSEY, E. H. SPOONER and SINCLAIR TOUSEY, as President of the American News Co., Respondents.
    
      Libel and slander—privilege of attorney and party in giving bill of particulars.—Bill of particulars—statements in become relevant and pertinent, as to question of privilege.
    
    Prior to this action, an action of libel was brought against defendant Tousey, founded on a newspaper article, of and concerning the plaintiff therein (a woman), charging, among other things, that some one had been written to, to inquire if her children were illegitimate; and that he was instructed chiefly to ascertain if her character was decent; also “they” cast the stigma of bastardy on two innocent little children, and that she herself had become a certain man’s mistress. Defendant Tousey, in his answer in that action, which was signed by defendant Spooner as his attorney, set up for a defense and in mitigation of damages, that the plaintiff therein was of bad character as to chastity, had frequented and been an inmate of a house of prostitution, and had lived with various men as a mistress. On motion of the plaintiff therein, and against the opposition of the defendant Tousey, he was ordered to serve on plaintiff a bill of particulars specifying the name or names of the individual or individuals whose mistress plaintiff was in the answer alleged to have been, with the date or dates of such alleged facts. In obedience to this order, a bill of particulars verified by defendant Tousey and signed by defendant Spooner, setting forth, among other individuals, that she became the mistress of this plaintiff in this action, in 1880, and was and continued, etc. This action for libel was brought, based on the allegation in the bill of particulars, and the facts above stated were set forth in the complaint.
    
      Held, that malice could not be presumed from the compliance with the order for a bill of particulars ; and that that order was an adjudication in the original action that the defense there interposed, of which the particulars were ordered, was relevant; and that, consequently, the allegations in the bill of particulars were privileged.
    Before Sedgwick, Oh. J., O’G-orman and Ingraham, JJ.
    
      Decided April 13, 1885.
    Appeal from a judgment entered on dismissal of the complaint at trial term on the pleadings.
    
      The facts appear in the opinion.
    
      Stafford, Graff & Roman, attorneys, and Marshall P. Stafford, of counsel for appellant, argued:
    I. A libel is not privileged by the mere fact that a legal pleading was the medium of publication. Libelous words in a legal pleading are not privileged unless they are material and pertinent to questions involved in the suit (Marsh v. Ellsworth, 50 N. Y. 311 ; Gilbert v. People, 1 Den. 43 ; Ring v. Wheeler, 7 Cow. 730 ; Hastings v. Lusk, 22 Wend. 410).
    II. The language complained of here was not material or pertinent as a plea in justification of the libel complained in the original suit. Six things are indispensably requisite to constitute a plea in justification of a libel. (1) Publication of the libel by the defendant must be admitted in direct and unqualified terms (Aníbal v. Hunter, 6 How. 255 ; Sayles v. Wooden, Ib. 84 ; Lewis v. Kendall, Ib. 59 ; Moak’s Van Santvoord’s Pl. [3d Ed.] 572). (2) There must be a specific averment that the matters are alleged as justification. Every allegation must be taken as made in bar of the action, unless it is expressly stated to be alleged as justification or in mitigation of damages (Fink v. Justh, 14 Abb. N. S. 110 ; Fry v. Bennett, 5 Sandf. 75 ; Mathews v. Beach, Ib. 256 ; Hagar v. Tibbets, 2 Abb. N. S. 102 ; Ayres v. Covill, 18 Barb. 260 ; Newman v. Otto, 4 Sandf. 668 ; Meyer v. Schultz, Ib. 664 ; Odgers on Libel. 117 ; Townsend on S. & L. § 354). (3) The justification must be as broad and as extensive as the libel. Anything short of this will not do. There are no degrees of justification. It must be the whole or nothing (Root v. King, 7 Cow. 619 ; Fry v. Bennett, 5 Sandf. 69 ; Odgers on Libel, 177; Townsend S. & L. §§ 212, 355, 359). (4) It must cover and consist of the precise charge made in the libel. Something near it, or something of a similar nature, will not do (Barthelemy v. The People, 2 Hill, 257 ; Andrews v. Vanduzer, 11 Johns. 42 ; Odgers on Libel, 177-8 ; Townsend S. & L. §§ 212, 355). (5) The facts must be so stated as to show that the charge is true. An averment in general terms that it is true will not suffice. Conculsions, inferences, rumors or arguments will not do. There must be such a clear, direct, plain statement of facts as to make it manifest that if the statements are true the libel was justified (Fink v. Justh, 10 Abb. N. S. 110 ; Annibal v. Hunter, 6 How. 255 ; Sayles v. Wooden, Ib. 84 ; Wachter v. Quenzer, 29 N. Y. 547 ; Billings v. Walter, 28 How. 97 ; Tilson v. Clark, 45 Barb. 178 ; Maretzek v. Cauldwell, 2 Rob. 715 ; Townsend S. & L. § 357 ; Ogders on Libel, 177-8). (6) It must appear that the justifying facts were known to the defendant at the time of publishing the libel (Bush v. Prosser, 11 N. Y. 360 ; Fry v. Bennett, 5 Sandf. 69 ; Root v. King, 7 Cow. 619). These rules are not changed by the provisions (Code, § 535), as to mitigation and justification (Bush v. Prosser, 11 N. Y. 349 ; Bisby v. Shaw, 12 Ib. 66); and as to the effect of attempting and failing to prove justification (Spencer v. Keeler, 51 N. Y. 535 ; Distin v. Rose, 69 Ib. 127).
    There is nothing in the original suit that meets a single one of these six indispensable requisites of a plea in justification of the libel complained of in that suit.
    III. The language complained of here was not material or pertinent in mitigation of damages in the action in which they were used. There are but two general ways in winch a defendant in a libel suit can possibly mitigate damages. One by showing there was no notice, because facts known at the time of publishing the libel induced a belief that the charge was probably true. The other by showing that plaintiff’s general reputation on the subject to which the libel relates was bad. (a.) The words complained of here could not be material or pertinent on the question of malice to reduce punitive damages ; because there is no allegation that the facts which they charge were known at the time of publishing the original libel, and so induced a belief that it was true (Bush v. Prosser, 11 N. Y. 360). (6.) The words here complained of could not be material or pertinent in mitigation of damages to reputation. Damage to reputation can be mitigated only by proving that .the plaintiff’s reputation was bad in the particular respect to which the libel pointed (Root v. King, 7 Cow. 629). But bad reputation, in general or in any particular respect, can be proved only in general terms, that is, by asking what is the general reputation as to any trait or moral quality. Specific acts of misconduct can never be proved to establish bad reputation (1 Greenleaf’s Ev. §§ 25, 27, 55, 424-426 ; Odgers on Libel, 305 ; Hatfield v. Lasher, 81 N. Y. 250). The reason of this rule is that the question or inquiry is, not as to character in fact, but as to reputation. The two things are entirely distinct.
    IV. The language here complained of was wholly impertinent and immaterial to any issue of the case in which it was uttered. By the authorities cited under the first point, therefore, the libelous allegation of which this plaintiff complains was not privileged, and all who were concerned in its publication are liable to an action therefor.
    V. The fact that the libelous allegation is found in a bill of particulars served under an order of court is immaterial. (a.) The order was an alternative one. It did not compel defendants to serve a bill of particulars. They were at liberty not to serve it, and a failure to do so would only have precluded them from giving proof in support of an allegation which was itself immaterial. The order directed particulars of the allegation that plaintiff had been the mistress of “various men.” This allegation of “various men” was itself totally irrelevant for the same reasons that the language complained of was irrelevant. It was not pertinent as a plea either in justification or mitigation of the charge that the plaintiff “ had become a certain man’s mistress.” The order of the court was, in effect, that if defendants desired to attempt to prove this immaterial allegation, they must furnish a bill of particulars. Parties to an action must always take the responsibility of their own pleadings. They cannot shift that responsibility upon the court, which always presumes that the allegations to be made under its order will be pertinent and material, and not recklessly libelous. Even if an order of court could shield a libelous allegation under any circumstances, an order which leaves a party the alternative of making the allegation or not, cannot have such effect. The responsibility of exercising the option rests upon the party who selects. (b.) In asking that defendants b¿ compelled to give particulars of the charge as to “ various men ” or else be precluded from giving proof under it, plaintiff, in the original action, proceeded in the regular and only proper way for the protection of her rights. The step was designed either to have the allegation abandoned as irrelevant, or else get facts which would enable plaintiff to know what it meant, and prepare to meet it. This is the practice allowed and commended by this court (Dowdney v. Volkening, 37 Super. Ct 313).
    
      E. H, Spooner, attorney, and William Fullerton, of counsel for respondents, argued:
    I. If the allegation in the bill of particulars, on which this present action is brought, was properly pleaded, and was material and pertinent in said former action, then it was privileged, and the complaint herein was properly dismissed (Carr v. Selden, 4 N. Y. 91; Marsh v. Elsworth, 1 Sweeny, 589 ; affirmed, 50 N. Y. 310 ; White v. Carroll, 42 Ib. 16).
    II. The allegation, which is the subject of this action, was also pertinent and material, and well pleaded in mitigation or reduction of damages as to every part of the original libel which related to plaintiff’s chastity (Wharton’s Law of Ev. § 51, vol. 1; Bush v. Prosser, 11 N. Y. 347 ; Kniffin v. McConnell, 30 Ib. 285 ; Verny v. Watkins, 7 Cox & P. 308 ; Wendell v. Edwards, 25 Hun, 498 ; Johnson v. Calkins, 1 John. Cas. 116 ; Willard v. Stone, 7 Cow. 22; Palmer v. Andrews, 7 Wend. 142; Boynton v. Kellogg, 3 Mass. 189 ; § 536 Code). It is certain that the words “or otherwise” inserted in section 536 Code Civil Procedure, on changing section 165 of the Code, were introduced for a purpose, and in seeking therefor, we find that a rational meaning and purpose can only be found on the theory that the legislature used the word “ mitigate ” in the phrase “tending to mitigate” in a limited sense, and intended thereby to cover such defenses only as bear on the question of defendant’s malice; and intended by the words “or otherwise” to include and authorize all other partial defenses which will have the effect to reduce damages ; and among which are included the partial defense that plaintiff’s general character is bad ; the partial defenses in cases for breach of promise of marriage and for a seduction, approved by the cases before cited, and such a partial defense as was made by the defendant in the original action of Prescott v. The American News Company, and on which this present action is brought.
    III. An action of libel will only lie on a pleading, because of gross and palpable errors therein. If there be any doubt as to the correctness of the views presented under the first and second points of this brief, then defendants rely with entire confidence on the doctrine laid down in the case of Warner v. Paine (2Sand. 195). In Bradner v. Faulkner (93 N. Y. 515), it was held that “the rules by which the sufficiency of pleading is ordinarily determined,—i. e., relevancy and materiality, may not be strictly applied to allegations in an answer of facts by way of mitigation,” and that “the borderline between such facts as are properly receivable in mitigation, and those which are inadmissible for such purposes cannot with accuracy be defined preliminarily to the trial.” As to what would have been such a “gross and palpable ” error in defendant’s pleading in the original action that a suit for libel would lie thereon, defendants herein conceive that if the third defense in that action had charged the plaintiff Prescott with being guilty of larceny, or had charged her with any other fault or crime, having no relation to the subject of her chastity, such charges might have been deemed gross and palpable errors in pleading. But defendant in the original action made no such charges, either in the third defense, or in the supplemental answer, or in the bill of particulars.
    IV. It is not necessary that the facts contained in all partial defenses should be known to defendant at the time of the publication of the libel. That is the case only where mitigation is asked for upon facts showing an absence of malice on the part of defendant; as was the case in Bush v. Prosser ( 11 N. Y. 347), and in Hartfield v. Lasher (81 Ib. 216). But the partial defenses in mitigation, which a defendant may make, are not confined to such as have the effect to show an absence of malice on his part. There are several which have no such effect, among which may be mentioned the partial defense that plaintiff’s general character is bad, the partial defense in actions for breach of promise of marriage, and for seduction, that plaintiff has been guilty of specific acts of unchastity, and defendants claim that among them is also included the partial defense in mitigation of damages, that defendant, in the original action of Prescott v. Tousey, made, namely, that plaintiff was guilty of various acts of unchastity. But the allegations were pleaded for the purpose of mitigating or reducing plaintiff’s damages by showing that she was an unchaste woman, and, therefore, not entitled to the same damages in an action brought by her on charges affecting her chastity, that she would be if she were virtuous ; the authority therefor being the words, “ or otherwise ” in section 536 of the Code, and the cases above cited. It is obvious that defendant’s right to plead such facts, for the purpose of reducing damages, can no more depend on the facts having been known to them at the time of the publication of the libel, than would their right to plead plaintiff’s general bad character for the same purpose depend on their having known the same to be bad at the time of the publication of the libel.
    V. If the allegation in the third defense in the original action, that “she lived with various men in the city of Mew York and elsewhere as a mistress,” was not material, yet plaintiff, by obtaining a bill of particulars of the same, made both it and the bill of particulars material. It often happens in practice that an immaterial allegation is made material by the manner in which the opposite party to the action deals with it. The interpretation of the - plaintiff’s act in moving for the bill of particulars was, that the original allegation in the third defense was good as far as it went, but that it did not go far enough. The result of this request or application to the court was the order compelling the defendant to put into his bill of particulars the very allegation now sued on in this present action. And defendant had a right to put such allegation into his bill of particulars as being material and proper ; plaintiff having elected to treat as material the allegation in the third defense, of which the allegation in the bill of particulars was an amplification—it being necessary to serve the allegation in the bill of particulars that defendant might preserve, under the order of the court, the right to litigate the said allegation in the third defense. The allegation in the answer having been treated by the parties to the action as relevant and material, it does not he in the mouth of - a stranger to the action, such as the plaintiff in this action was, to allege the contrary.
   By the Court.—Ingraham, J.

The complaint in this action alleges :—

That one Marie Prescott commenced an action against the defendant, Sinclair Tousey, as president of the American Mews Company, for libel, founded on a publication in a certain newspaper, and set forth the publication, the material portion of which, so far as this action is concerned, is as follows : _“He had written an article for the D. News, and he then showed it to her. She said it would be fearfully damaging to you. She implored him not to send the article. He said, that if you hadn’t some friend who would stop it, you -were a ruined woman, for he had been already written to, to inquire if your children were illegitimate, and what he was instructed chiefly to ascertain was if your character was decent. No friend with the needful coming forward, they cast the uneradicable stigma of bastardy on two innocent and helpless little children, left broken-hearted the actress mother, and recorded of the woman herself, who was then struggling hard to support all three, that she had become a certain man’s mistress.”

That in the answer to the complaint in that action the defendant alleged as follows : Third defense. For a further and third defense to said amended complaint, and in mitigation of damages, the defendant alleges on information and belief that at the time of the publication in said newspaper, called Nym Crinkle, of the article contained in said amended complaint, plaintiff was, and for a long time prior thereto had been, a woman of bad character as ■ to chastity, and was an unchaste woman, and had frequented and been an inmate of a house of prostitution in the city of New York and elsewhere, and that she had lived with various men in the city of New York and elsewhere as a mistress.”

That subsequently, on motion of the plaintiff in said action, and on opposition of the defendant, an order was entered, whereby it was ordered that within five days after service of this order upon the defendant, said defendant serve upon the plaintiff a bill of particulars of a part of the third defense contained in the defendant’s answer herein, specifying .... the name or names of the individual or individuals whose mistress plaintiff is therein alleged to have been, together with the date or dates of such alleged fact.”

That in compliance with said order, the defendant in said action served a bill of particulars, wherein it is alleged as follows : That plaintiff became the mistress of William Perzel in the year 1880, and was and continued to be his mistress during the months of October, November and December,-1880, and ever since has continued to be and now is his mistress.”

The original action was founded on the article published in 15 Nym Crinkle,” a newspaper published in the city of New York, of the issue of August 6, 1881. The answer and the bill of particulars in said action, were signed by the defendant Spooner as attorney for the defendants therein, and verified by the defendant Tousey.

This action is brought to recover for a libel upon the plaintiff contained in the statement of the bill of particulars above set forth. The case came on for trial before a jury, and on the opening of the case on motion of the defendant, the court dismissed the complaint, and from the judgment entered on such dismissal, plaintiff appeals.

The law is well settled that a party, and his attorney and counsel, conducting a judicial proceeding are privileged in respect to words or writing used in the course of such proceeding reflecting injuriously on others, when such words and writing are material and pertinent to the question involved, and that within such limits the protection is complete, irrespective of the motive with which they are used (Marshal v. Elsworth, 50 N. Y. 309); and malice cannot be predicated on what is so stated or written.

Where the matter is put forth by a party or his attorney or counsel, in the course of the proceeding, which may possibly be pertinent, the court should not and will not feel disposed so to regard it as to deprive its author of his privilege and protection. Where it is fairly debatable whether the matter is relevant, we are inclined to give the counsel or the party using the words the benefit of the doubt which may fairly existas to'its pertinency ” (Warner v. Paine, 2 Sandf. 201). And where a party or his counsel in the course of a judicial proceeding, used the words complained of in good faith, supposing them to be pertinent and without malice or any intention of slandering or libeling the plaintiff, the defendant is protected (Warner v. Paine, supra; Hastings v. Lusks, 22 Wend. 409).

In order, therefore, to sustain the dismissal of the complaint in this action, it must appear from the complaint itself that the words complained of were written in the course of a judicial proceeding, and were relevant and pertinent to the matter in question, or that the defendant used them in good faith, supposing them to be pertinent and without malice.

That the words complained of were used" in the course of a judicial proceeding is admitted, but it is claimed by the plaintiff that they were not pertinent to the controversy.

■ The third defense in the original answer does not attempt to allege particular facts. It says that the plaintiff was, and for a long time prior thereto had been, a woman of bad character as to chastity, and that she had lived with various men in the city of Hew York and elsewhere as a mistress. The defendant for his defense rested with that allegation. He did not allege in his answer that the plaintiff in that action was the mistress of the plaintiff here, or any particular fact that could be relied on upon the trial to mitigate the damages.

As the allegation in the original answer stood, plaintiff in this action would have suffered no damage, and under the rule laid down in Hatfield v. Lasher (81 N. Y. 246), particular facts could not have been proven, at any rate "without evidence that such facts were known to the defendant at the time of the publication of the original libel.

The plaintiff in that action, however, on application to the court, and notwithstanding the opposition of the defendant, obtained an order compelling the defendant to specify the name or names of the individual or individuals whose mistress plaintiff is alleged in the answer to have been. For that order the defendants are not responsible. It was made against their objection, and they were bound to comply with its terms, and for a failure to comply therewith the court had power to strike out the answer (Gross v. Clark, 87 N. Y. 272).

Can words written which are necessary to comply with the terms of such an order be malicious, or can malice be predicted of what is so written ? I think not. The service of the bill of particulars was not for the benefit of the defendant in that action. It did not aid his defense, but was required by the court for the protection of the plaintiff there. It was given under compulsion, and every presumption of malice which the law implies from written or spoken words, is rebutted by the existence of such facts.

Mor can the allegation in the bill of particulars be considered irrelevant. The order granting the bill of particulars was an adjudication in that suit that the defense was relevant, and that for plaintiff’s protection the particulars of the defense must be specified.

Under all the circumstances, I am of the opinion that the allegations of the bill of particulars were privileged, and the judgment should be affirmed, with costs.

O’Gorman, J., concurred.  