
    Max D. Josephson, Appellant, v. Musical Courier Company, Respondent.
    First Department,
    July 7, 1911.
    Libel — pleading — answer — incompetence of attorney — insufficient defense — allegations in mitigation of damages.
    Where the complaint in an action for libel brought by an attorney at law on a publication charging him with ignorance of his profession in failing to question the constitutionality of a Federal' statute, sets out a general charge of ignorance not limited to the particular case, an alleged complete defense setting out the statute, its interpretation by the Federal courts, etc., and the nature of the particular'case in" which the plaintiff was retained in which he failed to raise the issue of constitutionality, is in answer to a charge of professional ignorance in the par ticular case and a demurrer thereto should be sustained.
    But said allegations coupled with a statement that the facts were'lmown to the defendant before the publication of the article, and "that it "was published in reliance thereon in good faith and without malice, pleaded as a partial defense in mitigation of damages, is good, even though they do not set forth a general professional ignorance but limit it to the particular case in which the plaintiff was employed.
    Appeal by the plaintiff, Max D. Josephson, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the- county of New York on the 31st day of March, 1911, nunc pro tunc as of the' 14th day of March, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, as overruled the plaintiff’s demurrer to the first complete defense and to the second partial defense contained in the answer.
    
      Nathan Burkan, for the appellant.
    
      Edmond E. Wise, for the respondent.
   Miller, J.:

The action is for libel. The plaintiff, an attorney, complains of the publication by the defendantfof an article with reference to his conduct of the defense in an action' entitled Green v. Luby, brought to enjoin the defendant from publicly performing a copyrighted musical composition. The sting of the article complained of is to be found in the following paragraphs: “ The opposing lawyer [meaning the plaintiff] in his ignorance, failed to bring up the question of constitutionality, therefore the court took no cognizance of it, and proceeded to decide the case according to the law of 1909, which explicitly grants such public performing rights. * ■ * * The attorney for the defense failed to set up the only possible defense — a defense so strong- as to warrant the belief that the case would have had a very different termination, had he had the intelligence and knowledge necessary to meet it.” An interlocutory judgment overruling the demurrer to the complaint was affirmed by this court (140. App. Div. 932). ‘ Thereby we held that the charge of ignorance was general and not limited to a particular case. The complete defense demurred to set forth the history of the copyright statutes and the interpretation of them by the Federal courts; the circumstances attending the passage of the act of 1909, which for the first time undertook to grant public performing rights to a copyrighted musical composition; the nature of the case of Green v. Luby, and that 'the plaintiff, was the attorney for the defendant; that the constitutionality of the act of 1909, so far as it undertook to grant exclusive rights of public performance, was a question of serious doubt, and had never been passed upon by the courts of. competent jurisdiction, and that the plaintiff in the defense of the aforementioned action of Green v. Luby failed or omitted to raise such question because he did. not understand and was ignorant of the law on that particular question.”

It is manifest that the defendant has undertaken to plead to a charge of ignorance and unskillfulness in a particular case. If the plea is good its demurrer to the complaint should have been sustained. The plea that the plaintiff failed to raise a particular question in a particular case, because' he was ignorant of the law oh that particular question, wholly fails to meet a general charge of ignorance and lack of intelligence.

The" sanie matter, coupled with á statement that it was known to the defendant before the publication of the article, and that the article was published in reliance thereon, in good faith and without malice, is pleaded as a partial defense in mitigation of damages. We think the demurrer to the partial defense was properly overruled. “ Mitigating circumstances are. those which, while not proving the truth of the charge, do yet tend in some appreciable degree towards such proof and thus permit of an inference that defendant was not actuated by malice in his charge.” (Mattice v. Wilcox, 147 N. Y. 624, 634.) There can be no question but that the matter pleaded in mitigation bears upon the charge. While falling short of establishing general 'ignorance and lack'of intelligence, it may, upon the defendant’s theory, tend to establish ignorance of á particular question of constitutional law, displayed in a particular case, and ignorance displayed in a particular case would tend, although perhaps not of itself sufficient, to establish general ignorance. We do not now suggest that, in our opinion, the failure to attack the constitutional validity of the said act of 1909 indicated ignorance of copyright law or of constitutional law as applied to copyright law.

The interlocutory judgment should be modified, in so far as to sustain the demurrer to the first complete defense demurred to, giving the defendant leave to serve an amended answer within twenty- days, and as thus modified affirmed, without costs.

Ingraham, P. J., McLaughlin, Laughlin and1 Dowling, JJ., concurred. . *

Judgment modified as stated in opinion and as modified affirmed, without costs.  