
    BYRN against JUDD.
    
      Supreme Court, First District;
    
    
      Special Term, December, 1871.
    Libel.—Irrelevant Matter in Answer.
    In an action by the author of a book against the publishers of a newspaper, for libel in these words: “ Dr. B. makes a very bad book and vends medicines to match,”—the answer alleged: 1. That plaintiff had been engaged in vending worthless books calculated to deceive; and injurious and deceptive compounds, as medicines. 3. That defendants, in their capacity as journalists, deemed it their duty to expose all such deceptions. 3. That certain books published by plaintiff, specifying them, were of an immoral and deceptive character. 4. That plaintiff prepared certain medicines, specifying them, which were a fraud and a swindle; and that evidence of these allegations would be given in justification and mitigation of damages.
    Held, that these allegations should not be stricken out as irrelevant.
    Motion to strike out portions of an answer as irrelevant in action for libel.
    The action was brought by Marcus L. Byrn against Orange Judd and others, proprietors of the American Agriculturist.
    
    The complaint alleges that in 1868 the plaintiff was and still is, a physician of good standing; that in the April number of defendant’s paper,—a paper claiming a circulation of one hundred and fifty thousand,—the defendants, under the caption ££ Sundry Humbugs,” falsely and maliciously published, among other things, the following paragraph: ‘£ Dr. Byrn makes a very bad book and vends medicines to match.” The answer, of which, those portions referred to in the opinion are hereinafter set out in full—sets up justification, and also matters in mitigation. A motion was now made to strike out all the following portions of the defendants’ answer as irrelevant, to wit:
    “ That the publication complained of was and is, so far as the same refers to the plaintiff or any one else, substantially true ; that is to say, the said plaintiff, at the time referred to in the American Agriculturist, and for a long time before the commencement of this suit, had been engaged in publishing and vending and distributing through the country, bad books and pamphlets calculated to deceive and defraud the public, and containing printed matter unfit to be read by young persons ; which books and pamphlets, contained advertisements of medicines and pretended remedies for diseases, which medicines and pretended remedies were and are of a worthless and bad character, the sale of which is a fraud and imposition upon the public, particularly the uninstructed and youthful portion of the public.
    “And for a further answer to the plaintiff’s amended complaint, and in mitigation of any damages to which the plaintiff might otherwise appear to be' entitled, by reason of the publication of said supposed libelous article, these defendants say, that for a long time past, numerous evil disposed persons have been engaged in manufacturing, advertising, puffing and selling villainous, hurtful and destructive compounds under the guise of medicine, remedies, elixirs and cosmetics, with euphonious and deceptive names, which are sold in large quantities, and by which the unwary are grossly deceived and defrauded of their substance, and from the effects of which large numbers of the people suffer irreparable injury' in comfort and health.
    “That the defendants being proprietors of a public newspaper, printed and published in the city of New York, having an extensive circulation, and particularly in the country districts, where the foregoing advertisements and compounds have their most pernicious effect, the defendants deem it to be their duty as public journalists, for the promotion of the general welfare and the public good, to expose all such nefarious pursuits, and the persons engaged therein, as far as their space will admit, to the end that the public may be warned, and the credulous and confiding may shun the pernicious snares of rogues and swindlers.
    “ That before the publication complained of, the attention of one or more of the defendants had been called to the above books and pamphlets published by the plaintiff, and to the class of medicines vended by the plaintiff.
    “That the defendants having no personal acquaintance with the plaintiff, and without malice towards him or any one else, published in their aforesaid paper, with good motives, and as they believe, for justifiable ends, the words following: 1 Dr. Byrn makes a very bad book and vends medicines to match.’
    “And for a further answer herein, and by way of justification, the defendants will show on the trial hereof, that the plaintiff is the publisher of a very bad book, in this, to wit: that prior to the publication of the several matters mentioned and complained of in the plaintiff’s complaint, the plaintiff had published and circulated a book entitled 6 The Secret of Beauty, or How to be Handsome.’
    “That said book was circulated largely among young people, and was designed particularly for unmarried young people.
    “That said book is very bad and immoral, in this, to wit: It calls the attention of young people to matters connected with the baser passions, and pretends to give directions relating to the cure of diseases relating to the lower and animal propensities of mankind.
    “ And these defendants further say, that said book contains numerous passages, notices, hints and suggestions of a bad and immoral character, which render the said book very bad; and which book is too voluminous to be transcribed into this answer, but which the defendants crave to bring into court in justification of any supposed libelous or defamatory matter referred to in the plaintiff’s complaint.
    “ That the plaintiff has published another very bad book, entitled ‘ How to Live a Hundred Years;’ that said book is very bad in this, to wit, the same is deceptive in its character. Defendants are advised and believe that no guide or rule can be given to guarantee the continuance of human life for one hundred years.
    “The defendants allege on information and belief, that said book was prepared and is circulated, and sold by the plaintiff, to swindle, humbug, and deceive the public, and obtain money from the public without rendering an equivalent therefor.
    “ That said last-mentioned book contains some of the same immoral and indecent printed matter that is printed in the book here before referred to, entitled ‘ The Secret of Beauty.’
    “And for a further answer, the defendants set forth and state, that they will show on the trial hereof, and by way of justification of any supposed defamatory matter mentioned in the plaintiff’s complaint, that before the commencement of this suit the plaintiff had published and circulated a very bad book, entitled ‘Acts and Beauties of American Women.’
    “ That said book contained bad and immoral matter, and was unfit to be read and circulated in the community, and contained some of the same immoral matter mentioned and referred to in the said book ‘ Secret of Beauty.’
    “That in the literature of pharmacy, there is no such remedy or medicine known as the ‘ Great Japanese Pho-ko-ta,’ and that the said pretended medicine is calculated to deceive and defraud the public.
    “That the plaintiff puts up the said pretended medicine in packages, about four inches in length, and about two and one-half inches in width, upon which package is engraved the pretended likeness of a £ Heathen Chinee,’ smiling a smile that is childlike and bland, standing in close proximity to another of the saíne race, whose smile is pensive and sad ; but the pretended medicine is a fraud and swindle, and is calculated to deceive and defraud the public.
    “That the plaintiff pretends or professes to sell £ Artificial Ears ’ and medicated bandages, and other medicines which the defendants are informed and believe are calculated to deceive and defraud the public.
    £ 1 The defendants further say, that it would be impracticable, and they are advised that it is unnecessary to set forth copies at length of the books, made and published by the plaintiff, but they will ask leave on the trial hereof, to read such portions of the plaintiff’s books in evidence, in their own behalf, in support and in justification of the defendants’ alleged defamatory communication, mentioned in the amended complaint as the defendants deem pernicious, immoral and bad.
    “The defendants further say, that the plaintiff claims to invent, put up, and sell, various compounds, which he calls medicines, the component parts of which he conceals or attempts to conceal from the public, some of which he sells in packages, at the price of a dollar a package, and some for much more, and some for fifty cents a package, the cost of many of which does not exceed one cent per package, which medicine is sold by puffing in advertisements which are not true, and which medicines or pretended remedies the public would shun, if the constituent parts were given or the true nature thereof understood.
    “ That such pretended remedies or medicines are put up under the immediate observation of the plaintiff, and are puffed and sold by him, with the knowledge of their constituent parts. That it would be impracticable, and the defendants 'are advised that it is. unnecessary to set forth herein all of said medicines, and the evidence to sustain the supposed defamatory publication complained of in this action, but the defendants on the trial hereof will give evidence, that the plaintiff vends medicines that are pernicious and bad, in this, to wit, that said medicines will not cure all the diseases that they are advertised to do; that in many cases the administration of the plaintiff’s medicines would do harm rather than good ; that the advertisements and medicines tend to deceive and defraud the public.
    “That among the numerous pretended remedies and medicines vended by the plaintiff, may be enumerated : £ The Great Japanese Pho-ko-ta ;’ ‘ Dr. Byrn’s Bloom of Beauty for Pale Faces ;’ ‘ Dr. Byrn’s Japanese Skin Powder;’ ‘ Medicated Bandages;’ ‘Dr. Byrn’s Maguescope, or Universal Reading Glass ;’ ‘ Spermatorrhoea Electroide.’
    “The defendants will give in evidence all the foregoing matters, both by way of justification and in mitigation of any alleged damages herein. The defendants deny each and every allegation in the plaintiff’s amended complaint, not hereinbefore admitted or denied.”
    
      H P. Allen, for the plaintiff.
    
      Amos G. Hull, for the defendants,
    cited Bush v. Prosser, 11 N. Y. [1 Kern.], 347 ; Littlejohn v. Greeley, 13 Abb. Pr., 311; Blake v. Eldred, 18 How. Pr., 240; and Bisbey v. Shaw, 12 N. Y. [2 Kern.], 67
   Brady, J.

The part of the answer first objected to is a preliminary statement, and is not irrelevant. The second part is not irrelevant, because it shows that the defendants were not actuated by malice, and it is relevant in mitigation of damages.

The same observation applies to the third part.

The fourth part is not irrelevant, inasmuch as it states the circulation of the book alluded to and its injurious effects and bad character. I think this pertinent to the justification.

The fifth part relates to the justification itself, and is not irrelevant. It refers to a book named and published by the plaintiff, any part of which the defendants can resort to show that it is bad on the trial.

The same citerion applies to the sixth and seventh parts.

The eighth part, taken in connection with what precedes it in relation to the medicines named, is not irrelevant, except perhaps the allusion to the “Heathen Chinee,” which may be accepted as a description of the exterior of the medicines, and a playful contribution to the literature of the bar.

The ninth part is not irrelevant, because it is predicated of the averment that the antidote for tobacco is not as represented, and is a fraud and a swindle calculated to deceive the public. I think this conclusion fair, if it be true that the properties of the medicines are not as stated. If, in other words, it be not an antidote, it is calculated to deceive, and is a fraud.

The seller of a drug, medicine or so-called antidote, who vends it with an unqualified statement of its efficiency, must take the consequences, if his representations be untrue.

Specifics against the “thousand natural ills that flesh is heir to” are not easily attainable, and the medical profession do not claim to have devised many through all their experience and researches. They are nevertheless devoutly prayed for, and so potent is the desire for them that reasonable and indeed unreasonable assertions of their discovery are hailed with joy, and the public confidence is readily secured. When a person, therefore, assuming to have devised one, represents its accomplishments, the public have a right to rely upon the assurance given, however foolish such a confidence may seem. This world is not composed of Solomons, and even men of good judgment and large experience, especially when the wish is wedded to the hope, are sometimes easily trapped. Drugs should be dispensed with great caution, and the laws which are designed to protect the people from the use of them, save under the guidance of the expert chemist, conscientious druggist or skillful practitioner, cannot be too stringent. I do not design to express any opinion of the character of the plaintiff’s preparations; whether they are good or bad, injurious or harmless, I am not called upon to declare; but of the propriety of holding men to a strict accountability who attempt to practice upon the credulity of the afflicted, and subject them to a greater suffering, I entertain no doubt.

The tenth part is introductory to the eleventh, and must be regarded as a part of it. It may be that some portions of it are mere criticisims and irrelevant, but if so they are not seriously objectionable and should not be expunged.

In conclusion it may not be improper to say that the facts which the defendants may offer to prove are to be ruled upon at the trial, and the effect of them, when admitted and established, is for the jury; and further, that the line between justification and mitigation is not easily drawn, upon pleadings, although on the trial it may not be difficult to make the distinction.

For these reasons the motion is denied, but without costs.  