
    MARIE PRESCOTT, Appellant, v. SINCLAIR TOUSEY, E. H. SPOONER and SINCLAIR TOUSEY, as President of The American News Co., Respondents.
    
      Libel—Justification and mitigation, matters pleadable by way of— defense need not be pleaded specifically as a justification.—Privilege of parties and their attorneys.—Doubts as to pertinency and materiality, the benefit of to whom, to be given.
    
    
      A complaint in an action of libel brought by a woman, set forth, among other things, the following words, as having been written and published of and concerning her, which were alleged therein to be libelous : to wit, “ He was instructed chiefly to ascertain if your character was decent,” “ He had already been written to, to inquire if your children were illegitimate,” “ stigma of bastardy." The original answer to that action averred, among other things, that “shehad frequented and been an inmate of a house of prostitution in the city of New York the supplemental answer averred “ that in or about the summer of .1880, plaintiff became preg-
    . nant by a person not her husband, and had what is popularly called a miscarriage," the time and place being specified ; the bill of particulars, served pursuant to an order therefor obtained by plaintiff, set forth “ that the plaintiff was an inmate of a house of prostitution, known as No. 592 Seventh avenue, in the city of New York, in or about the months of January and February, 1881.” These matters were not specifically pleaded as a justification. No motion was made to strike them out as impertinent, immaterial or irrelevant. This action was brought against the defendant in that action and his attorney of record who signed the answer and hill of particulars, for a libel based on said allegations in said answer and bill of particulars. The defense was privilege.
    
      Held, 1st. That the said matters averred in the answer and bill of particulars were pertinent and relevant, and were proper to he pleaded and offered in evidence either by way of justification or in mitigation of damages.
    2nd. That although not formally pleaded as a justification, the matters in question may be regarded as alleged for that purpose as well as in mitigation.
    3d. Where there is any doubt as to whether matter pleaded by a defendant is pertinent and material, yet if the plaintiff allows it to remain in the pleading, the benefit of the doubt should be given to the defendant in determining his liability in an action of libel based on such matter.
    Before Sedgwick, Oh. J., and Van Vorst, J.
    
      Decided January 28, 1886.
    
      Appeal by plaintiff from a judgment entered against her upon a dismissal of her complaint upon the trial of the action before the court and a jury.
    The action was for a libel, and was founded on certain statements contained in an answer and supplemental answer interposed by defendant Tousey, to a complaint in an action for libel brought by the plaintiff herein against him as president of The American News Company, and on a bill of particulars served in that action pursuant to an order therefor-, obtained by the plaintiff therein. In that action, the defendant Spooner herein was the attorney of record for the defendant Tousey as president therein, and as such signed the said answer, supplemental answer and bill of particulars. The statements referred to are that “ she (plaintiff) had frequented and been an inmate of a house of prostitution in the city of New Yorki” contained in the original answer;—“that in or about the summer of 1880, plaintiff became pregnant by a person not her husband and had what is popularly called a miscarriage in the month of October, 1880, at a house known as number 287 Fifth avenue, in the city of New York,” contained in the supplemental answer;—that “ the plaintiff was an inmate of'a house of prostitution known as number 592 Seventh avenue, in the city of New York, in or about the months of January or February, 1881,” contained in the bill of particulars.
    Other facts appear in the opinion.
    
      Marshall P. Stafford, attorney, and of counsel for appellant,
    on the questions considered in the opinion, argued :—I. A libel is not privileged by the mere fact that a legal pleading is 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 (Gilbert v. People, 1 Den. 43 ; Ring v. Wheeler, 7 Cow. 730 ; Hastings v. Lusk, 22 Wend 410). 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 Cow. 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. Shultz, Ib. 664; Odgers on Libel, 177; Townshend 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 (Boot v. King, 7 Cow. 619 ; Fry v. Bennett, 5 Sandf. 69 ; Odgers on Libel, 177; Townshend 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. People, 2 Hill, 257; Andrews v. Vanduzer, 11 Johns. 42; Odgers on Libel, 177, 178 ; Townshend 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. Conclusions, 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, 14 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 ; Townshend S. & L. § 357 ; Odgers on Libel, 177, 178). (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).
    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.
    II. The language complained of here was not material or pertinent in mitigation of damages in the action in which they were used, (a.) There me but two general ways in which a defendant in a libel suit can possibly mitigate damages. These two ways are due to and dependent upon the fact that the damages themselves in such an action are of two kinds—one punitive or exemplary, the other compensation for actual damages sustained. The first may be mitigated by showing that facts known at the time of publishing the libel induced a belief that the charge was probably true and therefore naturally made the defendant less cautious in publishing it. This affects the question of malice and tends to mitigate damages on that score. The second may be mitigated by showing that plaintiff’s general reputation on the subject to which the libel relates was bad. This affects the question of actual damages sustained by injury to the reputation. (5.) The words complained of here could not be material or pertinent on the question of malice to reduce punitive damages. 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. Hence, the words complained of manifestly were not material or pertinent to mitigate punitive damages by affecting the question of malice (Bush v. Prosser, 11 N. Y. 360). (c.) The words here complained of could not be material or pertinent in mitigation of damages to reputation. (1.) 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). There is nothing—no allegation—anywhere to show that when the original libel spoke of “ decent character,” it referred to “ chastity.” Drunkenness, lying, thieving, gambling, being a procuress, an abortionist, a thieves’ “fence,” and a hundred other moral traits and qualities have quite as much as “chastity” to do with making “decent character,” and are quite as frequently meant when that phrase is used. Hence, without an averment that “ chastity ” was what was meant when the original libel spoke of “decent character,” unchastity could not be shown as a fact tending to mitigate actual damages. There being no such averment as to the meaning of the original libel, the allegations here complained of were clearly immaterial and impertinent to prove that plaintiff’s reputation was bad in the particular trait to which the libel pointed. (2). 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 Greenl. Ev. §§ 25, 27, 55, 424-426 ; Odgers on Libel, 305 ; Hatfield v. Lasher, 81 N. Y. 256). The reason of this rule is that the question or inquiry is, not as to the character in fact, but as to reputation. The two things are entirely distinct. A man’s actual character, in gen: eral or in any particular respect, may be much better or much worse than his reputation ; but it is to the reputation alone and not to actual character that the law allows inquiry to be directed on the question of mitigating damages for libel. Even if his reputation is much better than he deserves, the law protects him in that reputation and will allow him damages for its injury by a libel. Hence, even if the original answer had shown that “chastity” was what was referred to in the original libel, still, specific acts of unchastity could not be shown to establish bad reputation for chastity. The words here complained of, therefore, being charges of specific acts of unchastity, were totally irrelevant and immaterial. No evidence whatever could be given under them.
    III. 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 of the court was, in effect, that if defendants desired to attempt to prove the 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. Ev’enif 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. (6.) 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 tins court (Dowdney v. Volkening, 37 Super. Ct. 313).
    
      F. H. Spooner, attorney, and William Fullerton, of counsel for respondents,
    on the questions considered in the opinion, argued :—I. It is so clear that the allegation, which is the subject of this action, was pertinent and material, as pleaded in the former action, in justification of the charge that Marie Prescott “ became a certain man’s mistress,” that it would hardly seem to admit of argument. What could be a more perfect justification of that charge than to name the man whose mistress Marie Prescott became, and state when she became, and how long she continued to be his mistress ? The objection did not in terms state that its allegations were in justification of the libels on which this action was brought, is not well founded. Attention is called to the said third defense. Its opening words are : “ For a further and third defense to said amended complaint, and in mitigation of damages, defendant alleges,” &c. It is not necessary to characterize the defense ; as to whether it contains a justification must be determined by its averments, and it cannot be aided, enlarged or improved by a clause characterizing it, or expressing its purpose (Kelly v. Waterbury, 87 N. Y. 179 ; Halsted v. Nelson, 24 Hun, 395). It is only when the defense is partial that the defendant must state it to be in mitigation of damages ; otherwise plaintiff might suppose it to be intended as a complete defense, and demur to it (Fry v. Bennett, 5 Sand. 54 ; Code, § 536).
    II. (a.) 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 (1 Wharton’s Law of Ev. § 51 ; Bush v. Prosser, 11 N. Y. 347 ; Kniffin v. McConnell, 30 N. Y. 285 ; Verny v. Watkins, 7 Cox & Payne, 308 ; 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 ; Wendell v. Edwards, 25 Hun, 498). (b.) The allegation sued on in this action was pleaded in mitigation, or reduction of damages, not only on the authority of the cases above cited, but by reason of the phrase ‘ ‘ or otherwise ” studiously introduced into section 536 of the Code of Civil Procedure. No argument is necessary to show that the legislature intended to enlarge the old rule by the introduction of this phrase. We now suggest the extent to which that object has been accomplished. It is certain that the words “ or otherwise ” 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, and such a partial defense as was made by the defendant in the original action of Prescott v. The American News Co., and on which this present action is brought.
    III. 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. This is necessary only when the facts are pleaded in mitigation for the purpose of showing an absence of malice on the part of defendant. This was the case in Bush v. Prosser (11 N. Y. 347), and in the case of Hartfield v. Lasher (81 N. Y. 246). 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. These 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 defendants’ 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.
    IV. If the allegation in the third defense in the original action, that “she lived with various men in the city of New 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. If plaintiff in the original action intended to take and maintain the ground that the allegation in the defendant’s third defense above quoted was irrelevant and immaterial, she should have moved the court, when the answer was served, to strike out the objectionable allegation, or else have refrained from any action concerning it. But plaintiff did neither. If the allegation was immaterial, she elected to treat it as material and properly made, and to litigate the issue which it presented ; and to that end she procured from the .court an order for a bill of particulars. The interpretation of the plaintiff’s act in moving for a 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.
   Per Curiam.

Upon a full consideration of the pleadings in this action, we reach the conclusion that the supposed libelous matters contained in the answer of the defendant Tousey, 'and in the bill of particulars and supplemental answer, were absolutely privileged, and are, therefore, not actionable. The complaint in the original action, in setting up the libelous matter, for the publication. of which it was sought to make the defendant, The News Company, liable, contains the statement, “He was instructed chiefly to ascertain if your character was decent.” When such words are applied to a woman, they reasonably include the question of her chastity. If she was unchaste in action, she could not have a character for decency. The matter of which complaint is made in this action as contained in the defendant’s pleading and bill of particulars, related to that very subject, as it also did to the matter contained in the original libel, and these words, “he had been already written to, to inquire if your children were illegitimate,” andas to the “stigma of bastardy ” on her children.

If the plaintiff had been the inmate of a house of prostitution, if she had become pregnant by a man not her husband, such facts were proper to be pleaded and to be offered in evidence in the action by way of justification or in mitigation of damages.

Although not formally pleaded as a justification, the matter in question may, when contained in an answer, be regarded as alleged for that purpose, as well as in mitigation (Kelly v. Waterbury, 81 N. Y. 119).

While not accepting to its full extent the statement “ that for any defamatory matter contained in a pleading in a court of civil jurisdiction, no action for libel can be maintained ” (Townshend Libel & Slander, § 221), the authorities do clearly establish the proposition, that when the matter pleaded was material and pertinent, it is absolutely privileged (Odgers Libel & Slander, 190, 191, and cases cited). The learned author last cited, reaches the same conclusion as that announced by Mr. Townshend in his treatise, with respect to the rule upon this subject, that “pleadings” are absolutely privileged. ■

Be that, however, as it may, in cases of doubt as to whether matter pleaded, and which has been suffered to remain in a pleading, is material and pertinent, and properly pleaded, the party pleading should have the benefit of the doubt, in determining the question of liability in an action for libel (Warner v. Paine, 2 Sand. 195).

Irrelevant and impertinent matter in a pleading may be expunged on the application of a party aggrieved. Where a party does not seek an opportunity to get rid of objectionable matter in his adversary’s pleading, it maybe because he is not satisfied that it is either immaterial or impertinent; and we conclude, that the matter in question was neither the one, nor the other.

The judgment appealed from is affirmed, with costs.  