
    William J. Connors, Plaintiff, v. Robert F. Collier, Defendant.
    (Supreme Court, Erie Special Term,
    November, 1909.)
    Discovery and inspection — Examination of party before trial — Procedure— Modification of order; Vacation of order.
    Libel and slander — Justification — Sufficiency.
    An allegation in an answer in a libel suit that it was charged and believed that plaintiff assaulted a union man is not justification of a charge that the plaintiff did, in fact, commit such assault.
    And, where the only reason for the examination of the plaintiff before trial is to prove defendant’s defense in such a case, the order for plaintiff’s examination cannot be sustained.
    And where a perfect justification of one only of several libels is pleaded, an order for plaintiff’s examination should be limited to the cause of action for that libel.
    Motion by plaintiff to vacate an ea; parte order requiring him to be examined for defendant’s use upon the trial.
    Charles A. Dolson, for motion.
    L. L. Babcock, opposed.
   Brown, J.

Plaintiff makes this motion on the ground that the answer of the defendant is insufficient; that there is no issue raised upon which plaintiff can he examined; that it an insufficient answer as a justification for the publication of a libel to merely allege that the publication is true; that, to constitute a defense of justification, the answer must allege facts showing the truth of the charge, and that such justifying facts must be as broad as the charge; and that, because defendant’s answer fails to allege facts showing the truth of the published charge, there is no issue of fact raised by such answer and plaintiff cannot be examined relative to any facts that bear on the charge as published.

The law undoubtedly is that a mere general averment of the truth of a libel does not amount to a defense of justification; facts must be pleaded showing the charge to be true, unless in a case where the libel itself consists of a specific statement of the fact. Wachter v. Quenzer, 29 N. Y. 547; Lamphere v. Clark, 149 id. 472; McKane v. Brooklyn Citizen, 53 Hun, 132; Kingsley v. Kingsley, 79 id. 569; Ball v. Publishing Company, 38 id. 11; Brush v. Blot, 16 App. Div. 80; Nunnally v. Mail & Express Co., 113 id. 831.

The libel complained of consists of a publication in defendant’s Hatianal Weekly, in July, 1908, occupying over nine columns, in which plaintiff is characterized as a dock scrapper; the stoutest man in a free fight; the merriest roisterer on a spree; thick-set, young tough; if they were too many for him he reached for the bung starter, if that failed he took to the methods of Chinese highbinders; when life in his own saloon became too peaceful and wearisome he sallied forth at the head of his toughs, among whom he was king by right of might, to clean out the saloon of some dirty democrat; the bruisers and toughs of Connors gathered from all the lake ports; the toughest saloon keeper of a tough saloon in all the dock region; and many other descriptions of a character likely to bring contempt, ridicule and obloquy upon the plaintiff, including charges of conspiracy, riots and assaults. The publication itself does not contain a statement of the facts upon which the foregoing characterizations of plaintiff could be based. The answer of defendant does not'state facts justifying the use of the terms employed in the publication in describing plaintiff. Substantially every charge in the complaint stated to be libelous is answered by an attempted justification that falls short of being a complete answer; for instance, in the complaint it is charged that defendant published of and concerning the plaintiff: The record of how he split the scalp of a co-laborer. Connors, nursing the sullen resentment of an animal which has been beaten in a fight, visited the first ward to put a period to the strike. He had his gang at his back. Down the street came a Pole, a union leader among his countrymen. Connors called to him; the Pole thinking that this was an invitation for a parley approached. Connors was carrying a heavy, crooked cane. He hooked the crook about the Pole’s neck, jerked him over close and split his scalp with two blows of his staff.” The alleged justification for this publication is, “ the plaintiff did have an altercation with a certain union man and it was publicly charged and believed in the city of Buffalo that he did assault such union man with a heavy, crooked cane and beat such man therewith.” To publish a charge of assault in the second degree upon a colaborer cannot be justified by proving that plaintiff did have an altercation with a certain union man.” The fact that it was charged and believed that plaintiff did assault a union man is entirely immaterial as proof that the assault was in fact committed, and would afford no justification whatever for the published charge.

The only possible ground for the examination of the plaintiff is to prove defendant’s defense of justification. As no complete defense is interposed to any alleged libel, there can be no examination relative to the matters referred to in the answer as being a justification for the alleged publication. The matters set forth in the answer alleged in mitigation of damages are all alleged to be within the knowledge of the defendant, and no necessity or reason for the examination of the plaintiff to procure evidence of those matters exist.

The answer, however, does contain a perfect defense of justification in the fifth separate answer, wherein it is alleged that plaintiff consented to and authorized the publication of the matter complained of.

Under the authorities (Schweinburg v. Altman, 131 App. Div. 795; Bock v. Bock, 130 id. 229; Goldmark v. U. S. E. G. Company, 111 id. 529; McKeand v. Locke, 115 id. 175; Cherbuliez v. Parsons, 123 id. 814) defendant is entitled to examine the plaintiff as to the matters alleged in paragraph eighteen of the fifth separate answer.

An order may be entered denying plaintiff’s motion but limiting the examination of the plaintiff to the matters last above referred to.

Ordered accordingly.  