
    Edward W. Hatch, Pl’ff, v. George E. Matthews, Def’t.
    
      (Supreme Court, Erie Special Term,
    
    
      Filed June, 1894.)
    
    1. Pleading—Separately stated and numbered.
    The provisions of §§ 483, 507 of the Code apply only to cases where the court can see, from the pleading itself, that there is more than one cause of action or defense alleged, so that a separation should be made.
    2. Same—Answer—More definite and certain.
    Where the defendants, in an action for libel, plead their reasons for their conduct in mitigation of damages, they should be stated like any other fact pleaded in mitigation.'
    3. Same.
    But they should not be required to give the evidence on which they base the alleged libelous statement.
    Motion by the plaintiff to require the defendants to serve an amended answer wherein they shall separately state and number a defense of justification and one in mitigation of damages alleged in one answer to a complaint charging a libelous publication upon the plaintiff by the defendants, and also that the answer be made more definite and certain in certain particulars.
    
      Simon Fleischman, for pl’ff and the motion; Charles B. Wheeler, for def’ts, opposed.
   Ward, J.

—The substance of the libel charged in the complaint is that in an action that had been tried in the superior court of Buffalo before the plaintiff, as judge of that court, and a jury, wherein one Smith was plaintiff, and the defendants herein were defendants, which was also an action of libel, the plaintiff had been actuated by malice and by improper motives in his judicial action in that case. That is to say, the charge might bear that construction.

The defendants, in their answer in this action, go considerably into details of certain transactions between the plaintiff and his brother, Charles S. Hatch, and in regard to organizing another Republican newspaper in the city of Buffalo, and somewhat into political affairs in" that city, and charges the plaintiff with being prejudiced against them, but expressly disclaims any intention to charge the plaintiff “ with being guilty of corrupt conduct as a judge of said superior court of Buffalo against said defendants upon the trial and proceedings connected therewith of said action, in which Juliette 0. Smith was plaintiff and these defendants were defendants ” (the action- above referred to); and they also allege that they did not intend to charge any intentional or wilful misconduct on the part of said plaintiff on the trial of said action or the proceedings connected therewith.

Assuming that the charge contained in the complaint is as stated, that the plaintiff was actuated by malice and improper motives upon the trial of an action in the superior court, the answer, as served herein, does not contain a justification thereof, but all the matters alleged, taking the whole answer together (as we must), amount, if'they amount to anything, to a partial defense, or in mitigation of damages, notwithstanding the statement in the answer itself that the matters therein alleged were both by way of justification and mitigation. Indeed, the learned counsel for the defendants conceded that upon the hearing of this motion and moved that the word “justification” be stricken from the answer. Assuming then that there is no matter in justification alleged in this answer, but only matters of mitigation, then that portion of the motion which asks that the defense be separately stated and numbered must fail, because there is but one defense alleged, viz., in mitigation or a partial defense.

The provisions of the Code (§§ 483, 507) requiring that when two or more causes of action are stated in a complaint, or where more than one defense is alleged in the answer, they must be separately stated and numbered, apply only to cases where the court can see from the pleading itself that there is more than one cause of action or defense alleged, so that a separation should be made. Trenndlich v. Hall, 7 N. Y. Civ. Proc. Rep. 62.

The plaintiff’s motion further asks that the defendants’ answer be made more definite and certain in regard to the following allegation: “These defendants allege, however, upon their information and belief, that the said plaintiff, at the time of the trial of the said action, was, and still is, personally prejudiced and biased against these defendants and the said newspaper published by them, and that that prejudice and bias influenced the mind and judgment of said plaintiff in the discharge of his judicial duties, and that it did bias and prejudice said plaintiff in the trial of said action of Smith v. Matthews and the proceedings connected therewith.”

There is nothing indefinite or uncertain in this clause of the answer, the allegation being simply that the plaintiff was prejudiced and biased against the defendants, and that bias influenced his mind in the action tried before him in the superior court. The moving papers ask that the answer specify by what manifestation of speech or act such prejudice was shown by the plaintiff in the discharge of his judicial function in the action mentioned. That would require the defendants to give the evidence upon which they base their charge of prejudice or bias, which cannot be done.

The moving papers further ask that the following allegation in the answer be made more definite and certain: ‘“And said defendants further allege, upon their information and belief, that the said defendant Matthews and the said defendant Austin had good and sufficient reasons for believing that the statement so, as aforesaid, made by the said Charles S. Hatch was the result of an outcome of statements made by this plaintiff to the said Charles S. Hatch, and were the result of unfriendly and hostile feelings on the part of said plaintiff and the said Charles S. Hatch towards these defendants,” by stating specifically the good and sufficient reasons which the defendants claim to have had for believing, etc., as above stated. This part of the motion should be granted ; as the defendants choose to say that they have sufficient reasons for their conduct, and plead those reasons in mitigation of damages, they become facts upon which the defendants rely in making out their defense in mitigation, and they should, therefore, be stated like any other fact plead in mitigation.

The word “justification” will be stricken from the second answer herein, and an order entered in accordance with the views expressed herein, and, as neither party has fully prevailed upon this motion, motion costs are not allowed to either party.

Ordered accordingly.  