
    John Doyle, Respondent, v. Paul Fritz (Sued as “John” Fritz), Appellant.
    
      Slander—a general denial and in a single count a defense in justification and in-mitigation— a demurrer to the latter, where it is sufficient as a defense in mitigation and insufficient as one in justification, is had—the judgment should, in any event, he interlocutory and not final—costs to he collected when the whole issue• is tried.
    
    The answer interposed in an action of slander, in addition to a general denial,, alleged, as a separate and distinct defense, certain new matter which was; pleaded in a single count both by way of justification and in mitigation.
    The plaintiff demurred, in terms, to the entire defense consisting of new matter, on the ground that it was insufficient in law. A final judgment was rendered sustaining the demurrer and awarding the plaintiff costs, with leave to collect the same by execution.
    
      Held, that, as the plaintiff did not contend that the defense was insufficient in law by way of mitigation (although it was conceded to be insufficient as a justification), the demurer should not have been sustained;
    That, if the plaintiff desired that the new matter by way of justification and by way of mitigation should be pleaded separately, he should adopt some appropriate remedy to accomplish that result;
    That the judgment sustaining the demurrer was also irregular in that it was final instead of interlocutory, and in that the costs were made collectible before the trial of the whole issue and the entry of the final judgment thereon.
    Appeal by the defendant, Paul Fritz (sued as “ John” Fritz), from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of July, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to one of the defenses set up in defendant’s answer.
    
      Paul Fritz, appellant, in person.
    
      Charles J. Belfer, for the respondent.
   Hirschberg, J. :

The plaintiff sues to recover damages for slander, consisting in the alleged utterance by the defendant concerning him in the presence and hearing of others, of the false and defamatory words, “You are a damned thief; you stole three dollars from me; I want you to return my three dollars.” The answer, in addition to a general denial, contains as a separate and distinct defense certain new matter which is pleaded in a single count, both by way of justification and in mitigation. • The plaintiff ¡demurred to the defense consisting of new matter, on the ground that it was insufficient in law, and upon the trial of the issue of law thus joined has obtained a final judgment sustaining the demurrer and awarding to him a taxed bill of costs, with execution therefor.

It is unnecessary to recite the facts pleaded as new matter. The appellant does not claim in the briefs submitted on this appeal that it is sufficient in law by way of justification, and the learned counsel for the respondent does not claim that it is insufficient in law by way of mitigation. The contention on behalf of the respondent is that the demurrer was only to the defense as set up by way of justification; that the effect of the judgment is only to sustain the demurrer to that extent, and that the appellant is still at liberty upon the trial to prove the facts pleaded in mitigation of damages.

The respondent’s contention is untenable. The demurrer was in terms to the entire defense, and the judgment adjudicates the new matter as insufficient in law either for justification or in mitigation. By sections 535 and 536 of the Code of Civil Procedure, the defendant in a slander suit may plead facts tending to mitigate or otherwise reduce the plaintiff’s damages, although not amounting to a total defense, and may prove such facts notwithstanding he may have pleaded a justification. The words “ personal injury ” in section 536 are defined in section 3343, subdivision 9, of the Code of Civil Procedure to include slander. Assuming, therefore,, as seems to be conceded, but without determining that question, that the facts set up are competent in mitigation, the judgment is erroneous in that it takes from the defendant the benefit of the partial defense to which he is entitled. While the sufficiency of the partial defense is raised by the demurrer (Code Civ. Proc. § 508) only the question of sufficiency is thus presented (§ 494, Code, supra), and if the plaintiff desires that the new matter should be pleaded separately by way of justification and by way of mitigation he must adopt some appropriate remedy to accomplish that result.

The judgment is also irregular in that it is final instead of interlocutory, and in that the costs are made collectible before the trial of the whole issue and the entry of the final judgment thereon. (See Burnett v. Burnett, 86 App. Div. 386, and cases therein cited.)

Under the circumstances we deem it proper that the judgment should be reversed and a new trial of the issue granted, with costs to abide the event.

Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

Judgment reversed and new trial of the issue of law granted, costs to abide the event.  