
    Edward H. Knox, respondent, v. The Commercial Agency et al., appellants.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 1, 1886,)
    
    1. Libel and slandeb—Pleading—Justification ob mitigation—Pacts
    MUST BE STATED IN ANSWEB IVIIEBE TUB ATTEMPT IS TO JUSTIFY OB MITIGATE.
    In an action for slander the right to put in justification as a defense depends upon the statement of facts in the answer showing the truth of the libellous matter charged to have been published, and if the pleader designs to mitigate the plaintiff’s damages he is equally bound to state the facts on which such mitigation is predicated.
    
      
      2. Same.
    Where the answer for defense alleged that the statements charged as libellous were true, it was held bad on demurrer.
    3. Same—Section 536, Code of Civil Pbocedube.'
    Section 536, Code of Civil Procedure, which provides that the defendant in such cases may prove at the trial facts not amounting to a total defense tending to mitigate or otherwise reduce damages, only applies where they are set forth in the answer.
    Appeal from a judgment sustaining a demurrer to the. second defense in the several answers of the defendants.
    D. M. Porter, for appellants.
    
      John W. Weed, for respondent.
   Brady, J.

In answer to the publication of the alleged libel, the defendants admitted, by the first paragraph in the answer, that the plaintiff was a merchant in the city of New York and the defendants were still a corporation carrying on business in that city, and that the other defendants were officers connected with it, and denied every other allegation in the complaint. And for a second defense, adopting the admissions which were made as already stated, and making the same a part of such second defense, it alleged, upon information and belief, that the statements charged as libellous, and averred hi the complaint, were true.

This defense was demurred to and disposed of by the learned justice in the court below in a very brief opinion, but nevertheless showing the insufficiency of the defense. He said: “The fault of the second defense demurred to is that it contains no statement of facts constituting a defense by justification,” citing Wachter v. Quenzer (29 N. Y., 547). And he further said that it was equally barren of facts' which, not constituting a defense, might properly be pleaded in mitigation of damages.

In Wachter v. Quenzer (supra), the statement contained in the answer was analogous to the one in question, namely, that it was true that the plaintiff made himself invisible on account of too much borrowing and not paying, i. e., ran away—which the court said was as general as the hbel, and apprised the plaintiff of nothing. The court approved the rule stated by Mr. Ohitty in his treatise on Slander, which declares that in this class of actions, if the defendant undertakes justification, it must be by stating the particular facts which evince the truth of the imputation, and that the rule holds whether the imputation upon the plaintiff’s character be of a general or specific nature. And it was held that this rule was not abolished by the Code. No report of any case in this state has been found which, under the common law or any provision of the Code, has dispensed with this rule and none is likely to be found, because it is wise and just. There is nothing in section 536’ of the Code of Civil Procedure, which warrants a departure from it.

The defendant does not derive any advantage from that portion of that section which declares the defendant may prove at the trial facts not amounting to a total defense, tending to mitigate or otherwise roduce the plaintiff’s damages, if they are set forth in the answer. For in the case of Bradner v. Faulkner (93 N. Y., 517), it is said to be the essence of mitigating circumstrnces that they do not constitute a total defense to the action, but are those facts from which the party acting upon them might reasonbly suppose that the offense, for the punishment of which the prosecution was instituted, had been committed by the defendant therein.

It will have been observed that the right of justification and the right to mitigate or reduce the plaintiff’s damages are dependent upon the statement of facts, and as suggested by the learned justice in the court below, there are no facts. It is a mere repetition of the libellous charge contained in the complaint. The rule may be said, therefore, to be founded on the cases cited, and to which these might be added, that, if a justification is attempted, it must be by a statement of facts showing the truth of the libellous matter charged to have been published; and, if the pleader designs to mitigate the damages, he is equally bound to state the facts on which such mitigation is predicated. For example, it is averred that the plaintiff was a politician. There are no facts given to prove that averment or illustrative of it. The allegation is also made that the plaintiff had squandered $40,000 of his father’s money. There are no facts given tending to show that this is true, and none either that he had married a Brooklyn concert singer. So that the second defense is a bold reiteration of the slanderous charge, without the statement of-one single f'act_ in Reference to any of the libeHous matter contained within it tending to show its truth in any respect, or presenting reasons why there should be a mitigation of damages.

A more extended examination of this question might be indulged in, but it is deemed to be unnecessary, for the reason that it seems to be a very plain case and one which was properly disposed of in the brief opinion of the learned justice in the court below, and which presents the fatal infirmity of the answer.

For these reasons we think the judgments should be affirmed, with liberty, however, to the defendants to answer de nova upon the payment of costs.

Daniels, J., concurs.  