
    George L. Robinson, Respondent, v. George Gordon Battle, Appellant, Impleaded with Star Company, Defendant.
    First Department,
    December 29, 1911.
    ■ Libel — defenses—justification, — privilege — account of judicial proceedings—pleading ^denial that defendant published libel.
    Where in an action for libel the complaint alleges that defendant, with intent that the same be published, composed a libelous article for a newspaper in reference to an action for séparation which had been brought against plaintiff by his wife, a defense pleading justification and the truth of the matter complained of and setting forth the findings of fact and conclusions of law of the judge upon the trial of the separation action, which fully justify the alleged libelous statement, is not ■ demurrable..
    So, also, a defense pleading privilege in that the statement complained of was a fair and true report of a judicial, proceeding and that defendant was not actuated by malice in furnishing it to the paper is good as against a demurrer.
    Since defendant is charged not'with having published or circulated the libel, but only with having prepared an interview with a view to its publication, the defense pleading justification is not rendered demurrable because it is alleged therein that the article was “never published or circulated by this defendant.”
    Appeal by the defendant, George Gordon Battle, from an interlocutory judgment of the Súpreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of October, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the 9th and 11th paragraphs of the said defendant’s answer.
    
      John Caldwell Myers, for the appellant.
    
      Philo P. Safford, for the respondent.
   Dowling, J.:

The complaint herein is based upon the publication in a certain newspaper of an alleged libelous article affecting the plaintiff, which is charged to have been composed for publication in said newspaper by the defendant Battle, and to have been furnished by him to the publisher thereof with the intent and for the purpose that the same should be published. In this article the defendant Battle, who had been counsel for plaintiff’s wife in a case for separation, brought by her against the plaintiff herein, was claimed to have said: Judge Crane found that Hr. Bobinson had treated his wife in a cruel and inhuman manner. He also found that she had given him some provocation, and that when Mr. Bobinson treated her cruelly, she had on occasions retaliated. Judge Crane, however, did not find that this provocation was enough to constitute a defense to Mrs. Bobinson’s charges. He held that under the circumstances he would not issue a decree of separation.” This article followed a trial of a separation suit before Mr. Justice Crane in the Supreme Court, Kings county, and it is for the statements therein contained that defendant is sought to be held liable. By his second and separate answer and defense, the defendant sought to plead justification and the truth of the matter complained of; he included and made part of said defense the findings of fact and conclusions of law made by Hr. Justice Crane upon the trial of the separation action. For his third separate defense defendant pleaded privilege, in that the statement complained of was a fair and true report of á judicial proceeding and that the defendant was not actuated by malice in furnishing the matter to the paper. From the decision annexed to the answer and made a part thereof, it appears that some 118 findings of fact were made upon the trial of the separation suit; from an inspection thereof we find that at least 29 of' the number are findings of acts upon the part of the defendant in the separation suit which, in contemplation of law, consti- ■ tuted cruel and inhuman treatment. Some of. them are findings of actual' assaults committed upon the plaintiff in that action while others are findings of the use of profane and abusive language, attempts at assault and charges; reflecting upon the wife’s chastity and character. The learned trial court refused to grant a decree of separation for the reason that while it found as conclusion of law that “the defendant has treated the plaintiff in a manner which would be cruel and inhuman but for the provocation mentioned herein,” plaintiff had been guilty of provocation justifying the court in refusing her a decree, and, therefore, he did not dismiss the complaint but withheld the granting of a decree and provided for the education and maintenance of the plaintiff and her child.

We are of the opinion that the findings of facts and conclusions of law made by the learned trial court in the separation suit fully justified the statement made by the defendant Battle and that his summary of the conclusions reached by the trial court was a fair and accurate one. The court found that the plaintiff herein had been guilty of cruel and inhuman treatment of his wife. The fact that the wife herself had given him provocation did not change the character of the acts which he committed, but only went to the question of her right to obtain relief from a court of equity, which deemed her not entitled to such relief because of the provocation given by her to her husband.

In the opinion of Hr. Justice Hirschberg on the appeal (.146 App. Div. 533) it was stated that “the learned trial court found as facts that the defendant was guilty of the cruel and inhuman treatment charged against him; but also found that the plaintiff’s conduct was such as to provoke and irritate her husband to the extent of constituting a complete defense to the accusations against him,” thus confirming the conclusion that the trial court had found as a fact the defendant’s commission of cruel and inhuman treatment.

We think that both these separate defenses were good inlaw and that the demurrers thereto should have been overruled. With respect to the second separate defense the words “ although never published or circulated by this defendant,” if included in a defense setting forth justification and the truth of the matter complained of, would render that defense demurrable under the decision in Jacoby v. James (136 App. Div. 432), if interposed by a newspaper charged with having published and circulated the libel; hut here the defendant Battle is not charged with having published or circulated the libel, but only with having prepared an interview with a view to its publication, and that fact is not denied by 'this separate defense. The allegation of his not having published or circulated it may, therefore, be treated as mere surplusage.

The judgment appealed from should, therefore, be reversed, with costs to the appellant, and the demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of costs in this court and in the court below.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of costs.  