
    Bissell v. Press Pub. Co.
    
      (Supreme Court, General Term, First Department.
    
    December 31, 1891.)
    1. Libel—What is Actionable—Report of Judicial Proceeding.
    A proceeding before a police magistrate is a “ judicial” proceeding, within Code Civil Proc. § 1907, providing that the publishing in a newspaper of a fair and true report of judicial proceedings, without malice, is not actionable.
    3. Same—Truth in Mitigation—Belief of Defendant.
    Under Code Civil Proc. § 508, providing that matter tending only to mitigate or reduce damages is a partial defense, defendant, in an action for a newspaper libel, may set up in partial defense that the publication was a fair, true, and correct account of judicial proceedings, made without malice, in the belief that they were true.
    Appeal from special term, New York county.
    Action of libel by Champion Bissell against the Press Publishing Company. Plaintiff appeals from a judgment overruling his demurrer to the second and third partial defenses set forth in the amended answer.
    Affirmed.
    Argued before Van Brunt, P. J., and Barrett and Andrews, JJ.
    D. D. McKoon, for appellant.
    (1) The newspaper reports complained of are reports of ex parte, preliminary proceedings of the police court, and are not privileged. Stanley v. Webb, 4 Sandf. 21; Matthews v. Beach, 5 Sandf. 256; Stark. Sland. & L. (Wend. Ed. notes,) 172, 173; Holt, Libel, (Amer. Ed. notes,) 172, 173; Cooke, Defam. 45; Duncan v. Thwaites, 3 Barn. & C. 556; King v. Fisher, 2 Camp. 563; Heard, Sland. & L. § 104; Sandford v. Bennett, 24 N. Y. 25; O'Donaghue v. McGovern, 23 Wend. 26.
    (2) A plea of privileged communication is a plea of justification. Bailey, Code Pl. (1890) 259; Halstead v. Nelson, 24 Hun, 395. The justification must be as broad as the charge. Bailey, Code Pl. (1890) 258; Jones v. Townsend, 21 Fla. 431; Hathorn v. Spring Co., 44 Hun, 608; Skinner v. Powers, 1 Wend. 451; Loveland v. Hosmer, 8 How. Pr. 215. The question of privilege is properly raised upon demurrer. Fry v. Bennett, 5 Sandf. 54; Van Benschotten v. Yaple, 13 How. Pr. 100, 101; Code Civil Proc. § 508; Thompson v. Halbert, 40 Hun, 536, 537; McKyring v. Bull, 16 N. Y. 297; Newman v. Otto, 4 Sandf. 669. The matter in question is not pleaded in mitigation, and cannot be used in mitigation. Hager v. Tibbits, 2 Abb. Pr. (N. S.) 97; Hathorn v. Spring Co., 44 Hun, 608; Bennett v. Matthews, 64 Barb. 410; Fry v. Bennett, 5 Sandf. 54; Ayers v. Covill, 18 Barb. 260; Willis v. Taggard, 6 How. Pr. 433, 436; Pom. Rem. § 608; Townsh. Sland. & L. 361, 407, 561, 562, 618. The same matter, if pleaded in justification and also in mitigation, must be separately stated for such purposes. 8 Abb. N. Y. Dig. p. 556; Fink v. Justh, 14 Abb. Pr. (N. S.) 107; Kelly v. Taintor, 48 How. Pr. 270; Bennett v. Matthews, 64 Barb. 410. There is nothing in the pleading to give notice that it is intended as in mitigation, and defendant, having omitted to plead in mitigation, is estopped from giving evidence in mitigation. It is bound by the statements as to the nature and extent of its plea. Insurance Co. v. Cuyler, 75 N. Y. 511, 514; Bates v. Rosecrans, 37 N. Y. 409; Clough v. Murray, 19 Abb. Pr. 97; Burke v. Thorne, 44 Barb. 363; Simmons v. Kayser, 43 N. Y. Super. Ct. 131, 137; Burrall v. De Groot, 5 Duer, 379, 382.
    
      Lowrey, Stone <& Auerbach, for respondent.
   Barrett, J.

The action is for libel. The complaint sets forth several causes of action. The answer commences with a general denial. It then alleges that, so far as the publications set forth in the seventh and eighth causes of action purport to be accounts of proceedings before a police justice, the same were fair, true, and. correct accounts of such proceedings, and were published without malice, and in the belief that they were true. Upon this it is further alleged that such publications were privileged, and are not actionable. These defenses are not specifically pleaded in mitigation of damages. They are characterized as separate and partial defenses. The demurrer is upon the ground that these partial defenses are insufficient in law upon the face thereof, and two points are made against them: First, that the proceedings before the police magistrate were not privileged; and, second, that they should have been specially pleaded in mitigation of damages, and not in justification.

The authorities cited by the appellant upon the first point were either at common law or prior to the act of 1854. The case which he mainly relies upoh (Stanley v. Webb, 4 Sandf. 21) was decided prior to the passage of this act, and it is no longer an authority. Indeed, it was subsequently held by the same court (in 1874) that proceedings before a police magistrate were “judicial proceedings,” within the meaning of the act, (Ackerman v. Jones, 37 N. Y. Super. Ct. 55, and cases there cited,) and that there was no distinction between such proceedings and the regular proceedings in a court of law. We have no doubt of the correctness of this decision. Fair and true reports of proceedings before police magistrates are within both the spirit and the letter of section 1907 of the Code of Civil Procedure, and their publication is thereby privileged.

The second point is also untenable. Whatever the rule may have been prior to the Code of Civil Procedure, matter tending to mitigate damages in an action for a personal injury is now partial defense. Code Civil Proc. § 508. It may therefore be set up as such. In the present case, if the matter set forth as a partial defense is established .upon the trial, it will eliminate so much of the libel set forth in the complaint as is covered by the privilege. Thus the libel will be shorn of some of its elements, and the damages will be proportionately reduced. The appellant, in his elaborate argument and citation of authorities on this point, overlooks this new provision of the Code, which seems to have been enacted for the very purpose of changing the old rule as laid down in Van Benschotten v. Yaple, 13 How. Pr. 100; Newman v. Otto, 4 Sandf. 668; and other cases. If matter tending only to mitigate or reduce damages is, under this section, a partial defense, then surely it may be pleaded as such. How, the matter here pleaded and admitted by the demurrer is, strictly speaking, a partial defense to the cause of action set forth; for it establishes a perfect defense to part of the libel. It also, and, indeed, as a sequence, tends to mitigate the damages recoverable for this entire publication. In either aspect, it was, under this section 508, properly pleaded as a partial defense. The judgment appealed from should therefore be affirmed, with costs, with leave to withdraw the demurrer on payment of costs of appeal and costs of demurrer at special term. All concur.  