
    Louis F. Haffen, Appellant, v. The Tribune Association, Respondent.
    First Department,
    June 5, 1908.
    Pleading — libel — affirmative defense — denials—redundancy.
    A general denial in an affirmative defense, or a specific denial not needed to make the defense complete and available, is improper and may be stricken out on motion.
    Where in an action for libel an affirmative defense alleges that the article was a true account of public proceedings and published without malice, it is improper to replead therein a denial that the article was falsely and maliciously published, a denial of plaintiff's damage, and affirmative allegations that no damage was suffered, and that the publication-was not malicious. But it is proper to replead an allegation of the meaning of the article intended, a denial of the meaning alleged in the complaint and an admission of publication setting forth the article at length.
    The same rules apply to an affirmative defense in mitigation of damages, except that it is proper to replead a denial of plaintiff’s damage.
    Appeal by the plaintiff, Louis F. Haffen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York,on the 28th day of April, 1908, denying the plaintiff’s motion to strike out certain parts of the answer as irrelevant and redundant.
    
      Louis O. Van Doren, for the appellant.
    
      Henry W. Sackett, for the respondent.
   McLaughlin, J.:

This action is brought to recover damages sustained by reason of the publication of an alleged libel.

The complaint contains six paragraphs designated First, Second, Third, Fourth, Fifth and Sixth. Except the formal parts, it sets forth the article complained of and alleged that it was published falsely and maliciously of and concerning the plaintiff (Paragraph Fourth) ; that the defendanu intended thereby to charge the plaintiff with maladministration in office (Paragraph Fifth); and by reason of such publication the plaintiff has been damaged in the sum of $100,000 (Paragraph Sixth).

The answer proper also contains six paragraphs designated I, II, III, IY, Y and YI. It denies the allegations contained in the paragraphs designated Fourth and Sixth of the complaint (Paragraph I); alleges the meaning intended to be conveyed by the article published as set forth in Paragraph Y of this answer ” (Paragraph II); denies except as alleged in paragraph II each and every allegation contained in the paragraph Fifth of the complaint (Paragraph III); denies that plaintiff has suffered damage in any sum whatever (Paragraph IY); admits the publication of an article, which it set forth at length (Paragraph Y); and alleges that the words and matter published were not published maliciously (Paragraph YI).

Certain new matter is then pleaded as a first affirmative defense and in justification, the first paragraph of which is as follows: YII. The defendant re-alleges and re-pleads each and every of the allegations and denials contained in the paragraphs of this answer numbered I, II, III, IY, Y and YI, with the same force and effect as if the same were here again re-pleaded and set forth at length.”

Then follow certain facts which are pleaded as a second separate and partial defense and in mitigation or reduction of damages. This defense is as follows: The defendant re-pleads and re-alleges all the allegations and denials contained in the paragraphs of this answer numbered I, II, III, IY, Y, YI, YIII, IX, X, XI, XII, ' XIII, XIY, XY and XYI, with the same force and effect as if the same were herb again re-pleaded and set forth at length.”

The plaintiff moved to strike out of each of these defenses the reallegation of paragraphs I to YI of the answer, on the ground that the same were irrelevant and redundant. The motion was denied and the appeal is from the order.

The Code of Civil Procedure (§ 500) prescribes what an answer must contain. First, it must contain a general or specific denial of each material allegation of the complaint controverted by the defendant or of any knowledge or information thereof sufficient to form a belief; and second, a statement of any new manter constituting a defense or counterclaim, in ordinary and concise language, without repetition.

A denial, either general or specific, is not the statement of any new matter and as such is improperly included in an affirmative defense (Stieffel v. Tolhurst, 55 App. Div. 532) unless it be necessary to make such new matter complete in order to constitute a defense (Eells v. Dumary, 84 id. 105), inasmuch as it is not a confession or avoidance of the matters alleged in the complaint. A general denial in an affirmative defense is always improper. A specific denial may or may not be, depending upon the new matter pleaded. Each separate defense pleaded must be complete in itself and contain all that is necessary to answer the whole cause of action, or that part of it which it purports to answer. (Brookline National Bank v. Moers, 19 App. Div. 155.) If the new matter pleaded is not complete without a specific denial, then it may be properly included. (Douglass v. Phenix Ins. Co., 138 N. Y. 209.) When an affirmative defense contains a general denial, its validity cannot be tested by demurrer. (State of South Dakota v. McChesney, 87 Hun, 293; White v. Koster, 89 id. 483; Flechter v. Jones, 64 id. 274; Stieffel v. Tolhurst, supra; Uggla v. Brokaw, 77 App. Div. 310.) A specific denial cannot, however, be included in an affirmative defense unless it be necessary to make the defense complete and available, and if improperly included may be stricken out on motion. (Stieffel v. Tolhurst, supra; Uggla v. Brokaw, supra; Stemmerman v. Kelly, 122 App. Div. 669.)

This view is somewhat in conflict with the one expressed in Garrett v. Wood (27 App. Div. 312). There it was held that where certain denials were realleged in a separate defense and were unnecessary to make the same effective, the court would consider that the pleader did not intend to incorporate such denials in aid of the new matter, and, therefore, the defense could be tested by demurrer. I am unable to adopt the reasoning, inasmuch as it seems to me it must be assumed that the pleader intended to incorporate in the defense the matters stated therein, and before the validity of the defense could be tested by demurrer, the denials had to be gotten rid of by motion.

In the case now before us the first affirmative defense consists of allegations that prior to the publication of the article complained of, grave charges of maladministration by the plaintiff were publicly made and taken up by various bodies and a petition made to the Governor to remove him; that the Governor returned the petition with the suggestion that the matter be referred to the commissioners of accounts of the city of Mew York, who were investigating similar charges against another official; that such course was pursued, and that the mayor instructed the commissioners to look into the charges, of which proceedings the defendant was fully informed; that the investigation disclosed certain facts which led to the removal of the other official, and that the defendant was informed that the commissioners had found ground for charges against the plaintiff, which were stated, and that the article was a fair and true report of public and official proceedings, privileged, published in good faith without malice, and with a belief in its truth. There were included, as -we have already seen, in this defense paragraphs I to VI of the answer.

Paragraph I consists of a denial of paragraphs Fourth and Sixth of the complaint, which alleges false and malicious publication of the article — which is set out — and that the plaintiff has suffered damage to the extent of $100,000. There is no necessity, in order to- make this defense complete, of pleading this denial,, for it is alleged in the matter not complained of that the article was a true account of public proceedings and was published without malice. Mor is the denial of the extent of plaintiff’s damage necessary, for if the article be true, justified or privileged, it is immaterial what damage the plaintiff sustained. This paragraph, therefore, should have been stricken out, inasmuch as it prevented plaintiff testing the validity of the defense by demurrer. Paragraphs II and III of this defense, which allege the meaning of the article intended by the defendant, and deny the meaning alleged in the complaint, are properly pleaded for the purpose of supplementing the new matter set forth. It is proper to lay before the jury this new matter for the purpose of enabling it to determine which interpretation is correct.

Paragraph III denies plaintiff’s interpretation, except as explained in paragraph II, and, therefore, the court properly refused to strike out either of these paragraphs. Paragraph IV, which denies that the plaintiff has suffered any damage, and Paragraph VI, that the article was not published maliciously, are not necessary to make the defense pleaded available, are redundant and irrelevant, and should have been stricken out. As to Paragraph IV, what damage the plaintiff sustained — the defense being justification-—is immaterial, and as to Paragraph VI, defendant has pleaded in the XVIth paragraph of this defense that the publication was made “ without malice, in good faith, and in the public interest.”

Paragraph Y, which consists of an admission that the defendant did publish of and concerning the plaintiff an article — which is set out at length — is properly included in the defense. It makes the same complete and sets out the identical article published.

All of the allegations and denials of this first affirmative defense are then repleaded as a second separate and partial defense, and in mitigation or reduction of damages. The question presented, so far as it relates to this defense, has already been disposed of with one exception. I am of the opinion it was proper to plead in this defense paragraph I of the answer. This paragraph denied the sixtli paragraph of the complaint, which alleged the extent of plaintiff’s damage. It is necessary in a partial defense to deny the extent of the damage alleged in the complaint. If such damage be not denied the same would be admitted and the facts pleaded as a partial defense, and in mitigation would be unavailable.

The order appealed from, therefore, should be modified by striking out of the first affirmative defense paragraphs I, IY and YI of the answer and by striking out of the second partial defense paragraphs IY and YI, and as thus modified should be affirmed, with ten dollars costs and disbursements.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order modified as stated in opinion, and as modified affirmed, with ten dollars costs and disbursements. Settle order on notice.  