
    August Wuensch, Appellant, v. The Morning Journal Association, Respondent.
    
      Libel—scandalous facts, proper in justification or mitigation, may be alleged,— prior and subsequent acts simply affecting the plaintiff’s character cannot be alleged — character of the plaintiff, how attacked.
    
    Where, in. an action brought to recover damages resulting from an alleged libel, the charge consists in part in the fact that the plaintiff, a married man, had been very often seen with young women, defendant may allege in his answer, in justification of the alleged libel, facts establishing the truth of such allegations, and these facts, cannot be stricken out of the answer even if they are scandalous in their nature.
    Similar allegations may be made 'in mitigation of damages, as, unless alleged in the answer, they cannot be proved.
    The defendant cannot, however, allege in mitigation of damages specific acts, affecting the character of the plaintiff, occurring before and'after the publication in question, none of which are competent to be proved in mitigation of punitive of exemplary damages or in qualification of the publication.
    Where a defendankdesires to attack the character of the plaintiff he may cross-examine the plaintiff relative to any specific acts which occurred before or after the publication of the libel down to the trial, and he may call witnesses as to the general reputation of the plaintiff at and prior to the time of the alleged publication, taut such witnesses cannot testify to specific acts.
    Appeal by the plaintiff, August Wuensch, 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 5th day of March, 1896, denying the plaintiff’s motion to strike out certain paragraphs of the defendant’s second amended answer as redundant, irrelevant and scandalous.
    The action was brought to recover damages for an alleged libel. The article alleged to have been libelous was published in the Morgen Journal, a German newspaper conducted by the defendant in New York city.
    The article was of considerable length and was set out in the complaint in full, in German, to which was added a translation into the English language. The ideas expressed in the article were substantially that plaintiff was in trouble, received ingratitude from his adopted daughter, whose husband wanted to relieve plaintiff of $25,000; that plaintiff was a wealthy paste-board box manufacturer and a model of an old man in love; that he was held in high esteem in the saloons of the east side because he was a good spender, and his business aforesaid allowed him such luxuries; that he did not speak favorably bf the Morgen Joxirnal because it had published at various times adventures in which plaintiff figured in the courts as a suffering or wronged hero ;' that it would not be a libel to write that the plaintiff still had a young heart; that his pocketbook permitted him to be the benefactor of ladies, and he did not hide his light 'under a bushel; that he was very often seen in the German Theatre with young ladies of whom he'could be the father, and the most remarkable thing about these frequently different darlings was that as a rule they were acquainted with many other gentlemen, but this was the business of the plaintiff and did not concern any one else; that generally he did not receive much gratitude for the great or little fatherly interest he showed toward the .feminine world ;■ often his efforts of protection entangled him in lawsuits, and this he even had to experience at the hands of his own niece and adopted daughter ; that he took her (Dora Ritter) into his house when she was & child four- years of. age; and allowed her to enjoy all the luxuries which a rich paste-board box manufacturer could afford; and when she grew up she married in 1886, against the plaintiff’s, will, a poor b'ut handsome Portuguese, John Dulany, but the marriage was not a happy one and Dora returned to plaintiff several times, but was always persuaded by her husband to return to him again; that her husband-was not friendly to plaintiff, and went so far in his hatred as to threaten plaintiff with a suit for larceny because his wife’s watch had disappeared in the plaintiff’s house, on which occasion he also charged plaintiff with being more than an uncle to his niece; that at the beginning of the summer a separation again took place between the young couple and the wife began a suit for divorce. When the same came to trial, January nineteenth, the husband succeeded in inducing his wife to withdraw the suit. During the pendency of these proceedings the plaintiff opened a letter addressed to the wife and afterwards was brought before the United States grand jury for this offense, but was honorably discharged by that body; that the latest in this lovely ideal family life was that the plaintiff would be sued for $25,000 damages by the husband for alienating the affections of his wife; that plaintiff was very much irritated over the whole matter; was a good-natured soul and detested ingratitude more-than having the matters spoken of in the newspapers, but he must console himself with the idea that-all good people must suffer, and that plaintiff, who had become rich, -could not expect to be an exception.
    The- motion was to strike out paragraphs 17 to 26, both inclusive, in defendant’s answer, which were substantially as follows:
    
      “ XVII. That for many years prior to September 28,. 1892; the plaintiff frequently drove in the parts of the city of New York, and appeared in other public places, and in saloons and theatres in the city of New York with women other than his wife..
    “ XVIII. That, for many years prior, to September 28, 1892, the plaintiff was a habitual-frequenter of wine and beet’ saloons, and had during such time spent money freely in such, saloons, and had the reputation among the keepers of saloons in the parts of New York city most frequented by the plaintiff as being a free spender of money in such saloons.
    “XIX. That for a number of years prior to September 28,. 1892,; the plaintiff spent large sums of money in supporting, entertaining and associating with young women.
    
      “ That between the years 1875 and 1885 the plaintiff visited and. associated with a young woman named Louise Kramer, since-deceased, and spent large sums of money upon her in supplying her witli money, in purchasing clothes for her, in furnishing a room for her in a house near his own and in frequently taking her to the German Theatre and other theatres, and otherwise entertaining her.
    “ That after the death of said Louise Kramer the plaintiff visited and associated with an actress named Bertha Meyer, upon whom he-spent a large sum of money in purchasing for her wearing apparel and jewelry, and otherwise entertaining her and supplying her with money..
    “ That in or about the year 1886, the plaintiff became acquainted with a young woman named Flora Beck, and for about two years thereafter constantly visited and associated with her and spent a large sum of money upon her, in purchasing clothing and jewelry for her, in supplying her with money, and .in entertaining her in numerous other ways.
    “ That thereafter, and prior to September 28, 1892, the plaintiff-visited and associated with a young woman named Pauline Wend-ling, and spent a large sum of money upon her in supplying her with money, clothing, jewelry, and escorting her to theatres and otherwise entertaining her.
    “ That in or about the year 1889, the plaintiff visited and associated intimately with a young married woman named Minnie Clark,, who was then known by the name of Minnie Weevil.
    “ That he spent a large sum of money upon her in supplying her with money for her personal expenses, in paying the rent of and furnishing for her a house at No. 2154 Lexington avenue, in the-city of New York, and paying for and. maintaining the house and supplying her with jewelry, clothing, horses, carriages and a dogcart, in escorting her to theatres, balls and restaurants and in entertaining her in various other ways.
    “ XX. That the foregoing are only some of the instances in which the plaintiff, prior to September 28,1892, intimately associated with: and made companions of young women, and that with permission of the court the defendant will prove other instances upon the trial of this action.
    “ As a third separate and partial defense and in mitigation of damages: '
    
      ' “ XXI. The defendant repeats and makes part of this defense all of the allegations, admissions and denials contained in the second defense with the same force and effect as if .they were specifically reiterated and set forth at length herein.
    “ XXII. The defendant alleges that. for mmy years prior to-September 28,. 1892, the relations existing between the plaintiff and. the various women, above referred to were notorious, and were for: many years prior, to said date a matter of common gossip among the acquaintances and neighbors of the plaintiff, and that the plaintiff had for many years prior to September 28,1892, had the reputation among his neighbors and acquaintances of associating intimately with and spending large sums of "money upon .women other than his wife.
    “XXIII. That .all of the. facts pleaded herein in mitigation of damages were known by the defendant prior to September 28, 1892, and had theretofore been communicated to the defendant by trustworthy persons and were believed by the defendant to be true.
    “ As a fourth separate and partial defense and in reduction of damages:
    “ XXIV. The defendant repeats and makes part of this defense all of the allegations, admissions and denials contained in the third defense, except the allegations contained in paragraph XXIII, with the same force and effect as if they were specifically reiterated and ¡set forth at length herein.
    “ XXV. That the plaintiff has, since September 28, 1892, visited ■and associated intimately with a young woman named Ethel Moore,, .and since September 28, 1892, has often appeared with her in public, driven with her in the parks of the .city of" New York, escorted her to theatres, and entertainments, in her company visited saloonsi •and restaurants, and on. December 14, 1895, was present with the-,said Ethel Moore in a house of ill fame in West 49th street in the¡ • city of New York..
    “ XXVI. That in consequence. of the foregoing the plaintiff’s1 ■.relations with the said Ethel Moore have been since September 28, 1892,- matters of common notoriety and gossip among the plaintiff’s •acquaintances and neighbors.”
    
      Julius Lehman, for the appellant.
    
      B. F. Einstein and C. J. Shearn, for the respondent.
   Williams, J.:

Paragraphs 17 to 20, both inclusive, are a part of the second defense in the answer, and are alleged in justification of portions of the alleged libelous publication. They are proper allegations for this purpose as will appear from a mere reading of the publication and the allegations. They allege matters which defendant desires to prove, to show the truth of some of the matters published, and being proper for such purpose should not be stricken out even if they are in their nature scandalous.

Paragraphs 21 to 23, both inclusive, repeat these same allegations and add other allegations by way of mitigation of damages. They are clearly proper for this purpose, and under section 536 of the Oode, could not be proved unless alleged in the answer They should not be stricken out even if in their nature scandalous. It is not the fault of the defendant that he is obliged to insert allegations in his answer of matters he needs to prove on trial in the proper defense of the action.

Paragraphs 24 to 26, both inclusive, constitutes the fourth separate defense, and are alleged in reduction of damages. The facts alleged are not competent and could not be proved upon the trial for the purpose for which they are alleged. The allegations in paragraph 24 are of specific acts affecting the character of plaintiff occurring before the alleged libelous publication, and those in paragraphs 25 and 26 are of specific acts occurring after such publication. They are none of them competent to be proved in mitigation of punitive or exemplary damages, or in justification of the publication. They are not alleged as such but merely in reduction of actual or compensatory damages. The rule in this "class of actions is that if the publication is not justified, the plaintiff is entitled to recover his actual or compensatory damages in any event. There can be no mitigation of this kind of damages. Mitigation extends or relates only to punitive or exemplary damages. A party, if entitled to such actual or compensatory damages, must be awarded such damages as the jury may find naturally and necessarily flow from the publication, for in jury to the plaintiff’s reputation and character. In the absence of proof as to what the plaintiff’s character was before the publication, the jury must assume that the plaintiff was possessed of a fair character. The defendant would have the right to attack Ms character, and show it was not such as the law would otherwise presume it to be, but he could only do so in two ways.: First, by cross-examination of the plaintiff himself if he should be used as á witness, and such cross-examination might extend to any specific acts occurring before- or after the publication down to the trial, as bearing upon his credibility-as a witness,- as well as upon his character, for injury to which damages are sought to be recovered.

Second, by calling witnesses as to the general reputation of the plaintiff at and .prior to the time of • the alleged publications. Witnesses could not be called, however, to prove specific acts on the part of the plaintiff occurring before or after the publication, either by way of attacking his credibility as a witness, or his character, for damages to which a recovery is sought. It follows, therefore, that the facts alleged in this fourth- separate defense are -improper and should have been stricken from the answer. Very, likely this separate defense was .subject to demurrer, and if there was no question made as to the matter being scandalous, the motion to strike out might properly have been denied on the ground that demurrer was the only proper remedy to relieve the answer frozn the allegations. But being of the character known as libelous, we think the court should have applied this remedy by motion to strike out, in order to remove the matter from the- record.

The order appealed from should be modified so as to provide for the striking out of the paragraphs 24 to 26, both inclusive, and as modified affirmed, without costs.

Yan Brunt, P. J., Barrett, Rumsbt and Patterson, JJ., concurred.

Order modified as directed in opinion and as so modified affirmed1, without costs.  