
    Max Maretzek, plaintiff and appellant, vs. William Cauldwell and another, defendants and respondents.
    1. Although, in an action for a libel, charging in general terms the plaintiff with a specific crime or vice, such as theft, dishonesty or the like, an answer which justified such libel was demurrable for not setting out the specific acts warranting such charge, yet, under the Code of Procedure which allows a motion to compel a defendant to make his answer more definite and certain, in an action for a libel charging certain exhibitions of the plaintiff with being such as to be an unfit resort for respectable persons, and in connection therewith the frequent attendance of persons of cerfetin specified immoral or illegal occupations or pursuits upon such exhibitions; Held that it was unnecessary in an answer justifying such supposed libel, to do more than reaffirm the statements.contained therein, without specifying the names of such persons. Such an answer is good on demurrer, whatever it may be on a motion to make it definite and certain.
    2. Defenses in an answer will not be stricken out for redundancy," unless they are obnoxious to that charge by their verboseness and repetitiousness.
    3. The statement of mitigating circumstances in an answer, although set up as a defense to an action for a libel, does not thereby render it a pleading, so as to be liable to be required to be made more definite and certain. Its sufficiency as a notice must be determined on a trial. The cases of Graham v. Stone, (6 How. Pr. 15,) Brown v. Orris, (Id. 376,) and Newman v. Otto, (4 Sandf. S. C. 21. 669,) approved of, and -the authority of Bush v. Prosser, (11 N. T. Rep. 347,) upon that point, doubted.
    4. The defense of a defendant who justifies such a libel is sufficiently definite and certain, without stating the names of improper persons who he charged frequented the plaintiff’s exhibitions, where he states them to be unknown to him.
    5. Whether a defense of a defendant, justifying such a libel, is sufficiently definite and certain where he does not give the names of agents of the plaintiff, and subscribers to his exhibition, whom he charges with furnishing such improper persons with tickets of admission thereto. Quiere, per McCuxir, J.
    (Before Robertson, Ch. J., Monell and McCunn, JJ.)
    Heard-1864;
    decided November, 1864.
    This was an appeal from, an order made by Chief Justice Robertson, at general term, on the 30th of April, 1864, overruling a demurrer by the plaintiff to -several defenses of the defendant; denying a motion to strike out some parts of the answer as redundant or irrelevant, and to require the defendants to make other parts more definite and certain. Which demurrer and motions were heard together.
    The action was for damages by means of libels which were set forth in the complaint. -
    The complaint set out as a first cause of action, the following language, in a publication by the defendants, as referring to operatic performances or exhibitions whereof the plaintiff was'manager, and claimed the same to be libelous: “The only apology for an opera presented to the public, is such an exhibition as no respectable member of the fair sex could patronipe without a sacrifice of both taste and modesty, and without the risk of coming in contact with the characters who now make it their rendezvous.” The defendants justified such statement in their answer, by reiterating it nearly in the same words, without specifying any one who made such place their rendezvous.
    The second cause of action set out in the complaint as libelous, and contained in a publication by the defendants, was in the following words : “ The Academy of Music, (referring to the exhibition so conducted by the plaintiff,) was under a ¿loak 9 9 Whispers did begin to circulate that the Academy of Music was hardly the place for modest and respectable women, and that 9 9 dead head or free tickets had been furnished to people, whom no decent citizen could wish to see beside liis wife and daughter, and (scarlet women' blazed forth in all their shame from parquette, dress circle and box of” the “Academy of Music, and that the lobbies thereof became infested with representatives from the worst city gambling hells, and that owners of pocket books and watches were compelled to keep a bright look out for their valuables,” and other comments. The defendant justified such publication by reiterating it in nearly the same words, without designating the persons so referred to as frequenting the place of such- exhibitions. 1
    The defendants set up as their sixth and seventh defenses, that they were credibly informed of the facts stated in the publications complained of, and believed the same to- be true, and were requested by the plaintiff to speak of his exhibitions for the benefit of the public, and they believed that it was for the benefit of the public and the plaintiff they should be advised of such facts, and-that they made such publication in the course of their business, and without any malice towards the plaintiff.
    They also set up in their answer, as a fourth and fifth and eighth defense, in mitigation of damages, <the truth of the statements contained in such publication, in their very words, and also the publication of a book by the plaintiff, in which he confessed he was a charlatan in opera management * * and substantially boasted of his success and ability in humbugging the opera public.
    They also set up in such answer, as a ninth defense, both as a justification and matter in mitigation of damages, that the plaintiff's operatic exhibitions were disgraced by an attendance * * of pickpockets and of * * kept mistresses, courtezans and boarders in houses of assignation and * of prostitution, whose names ‘ were to the defendants’ unknown, attended by their male keepers, friends and admirers, also unknown, which several persons were ° * brought there under the cards of free admission furnished by the plaintiff's regular agents.”
    The plaintiff, besides demurring to the first three defenses, gave notice of a motion to compel the defendants to make the fourth, fifth, sixth, seventh, eighth and ninth defenses more pertain, and to strike out the sixth, seventh and ninth defenses, and part of the eighth.
    The demurrers to the first, second and third causes of action were overruled, and the motion to strike out and make "more definite and certain the other defenses, was denied. From the order overruling such demurrer, and denying such motion, the plaintiff appealed.
    The following opinion was delivered at special term, upon overruling such demurrers and denying such motion.
    
      Robeetson, J". The first statement in the answer as a defense is not demtirrable, because it merely tabes issue on allegations in the complaint. (Code, § 153. Smith v. Greenin, 2 Sandf. S. C. R. 702.) If they áre immaterial, the only remedy for any prejudice arising therefrom to the plaintiff, if they stood alone, would be to move for judgment; and if they seriously incumbered the record, to strike them out under section 160 of the Code. Whether he would be successful in the latter motion may be doubted. (King v. Utica Ins. Co. 6 How. Pr. 485.)
    The only question under the demurrer to the second and third defense is, whether the charges in the defamatory publication complained of are so specific that an averment of their truth is sufficient as against a demurrer. Averments, in an aswef, of specific facts are unnecessary, when the accusation is general of stealing, dishonesty, and the like. (Anon. 3 How. Pr. R. 406. Fry v. Bennett, 5 Sandf. R. 54.). But the charge in the publications in question of the unfitness of the plaintiff’s exhibitions for the resort of respectable persons, is accompanied by specific charges of persons of specified immoral and illegal pursuits and occupations, by the plaintiff’s permission and encouragement, which is sufficient to make similar averments in a defense á good pleading, as against a demurrer. (Van Wych v. Guthrie, 4 Duer, 268: S. C. 17 N. Y. Rep. 190, sub nom. Van Wych v. Aspinwall.) If the plaintiff wishes further information, the Code (§ 160) furnishes ample remedy for any defect in the definiteness and certainty of the answer. The demurrer, must therefore be oyerruled, and the plaintiff left to his remedy finder that provision.
    The motion also to strike out the sixth:, seventh and ninth defenses, as redundant or irrelevant, must be denied, as they allege, new matter and are not so verbose or repetitious in their statement as to subject them to that objection.
    The motion to render more definite and certain the fourth, fifth, sixth, seventh and eighth defenses, raises the question how far mitigating circumstances set up in an answer in an action for a libel in connection with a defense of the truth of the publication, under the Code, (§ 165,). constitute a partial 
      defense so the action so as to require to he pleaded. If the allegations of mitigating circumstances in an answer be a mere notice, they would not come within the 160th section of the Code, which requires a pleading to be made definite and certain only where the precise nature of the defense is not apparent.
    In the case of Newman v. Otto et al. in this court, (4 Sandf. S. C. R. 669,) it was held by Judge Duer, that such allegations operated as a mere notice, and were not a defense. Because, if pleaded alone, they might be struck out as frivolous. In Graham v. Stone, 6 How. Pr. R. 15, and Brown v. Orvis, Id. 376, both cases in the Court of Appeals, Justices Johnson and Harris held separately and respectively that no facts could be set up in an answer in mitigation of damages, except when accompanied by an averment of the truth of the charge. The doctrine so laid down seems to have been disapproved of, by Justices Allen and Selden in a subsequent case in the Court of Appeals. (Bush v. Prosser, 11 N. Y. Rep. 347.) The question.of its soundness, however, did not fairly arise, nor was its repudiation involved in or necessary to the decision of that case. The sole question in it was, whether evidence offered on the trial, of bad conduct, on the part of the plaintiff, similar to that of which the defendant accused him, was admissible. There was no justification of the truth of the charge in the case, and although the defendant had set out in his answer the facts, of which he offered the evidence on the trial, it was not necessary to hold that they must be pleaded in order to warrant its admission. Ho objection could have arisen on that score, for whether those allegations were a mere notice or formed a pleading, the evidence was equally admissible under either theory.
    Justice Allen seems to have assumed, in that case, as unquestionable, that any thing given in evidence to reduce damages, either in an action of tort or contract, was- a defense within tire meaning of the Code, (§ 150,) which allows as many defenses to be set up as the defendant may have. He takes no notice of the distinction in that respect between torts and contracts so admirably pointed out by Judge Duer in Newman v. 
      Otto, (ubi sup.) which is, that a partial defense in an action on a contract necessarily reduces the damages, debt or sum claimed, while in one for tort, the effect of mitigating circumstances is uncertain. The jury may give only the same damages, whether the circumstances offered in reduction are proved to have occurred or not. The same cause, of action remains, whether the damages arising from it are aggravated or mitigated. In the former case, no issue could be taken on the matter of aggravation, (Steph. on Plead. 243;) the reason is equally good why it should not be on matters in diminution. Hence, while partial defenses in an action on a contract must be pleaded, (McKyring v. Ball, 16 N. Y. Rep. 297 ; Houghton v. Townsend, 8 How. 441 ; Gleason v. Moen, 2 Duer, 640; Barr v. Baker, 9 Mo. Rep. 840,) the whole current of authorities are against the right or duty to set up circumstances in mitigation, except in actions for tort, unless in an action for a libel or slander, where the charge is justified. (Rosenthal v. Brush, 1 Code R., N. S. 228. Scheider v. Schultz, 4 Sandf. 664. Saltus v. Kipp, 5 Duer, 646. S. C. 12 How. Pr. 343. S. C. 2 Abb. Pr. 382. Gilbert v. Rounds, 14 How. Pr. 46. Travis v. Barger, 24 Barb. 614.) If such circumstances constituted the whole answer, no judgment, within the meaning of the Code, could be given on an issue formed by a reply, because it could not be the final determination of the lights of the parties, (§ 245,) without an assessment of damages ; and there is nothing in the Code to indicate that it was designed to deprive the defendant of the formerly existing right of reducing the damages on an assessment by evidence in mitigation. The very section (65) which provides for the admission of such circumstances, notwithstanding the publication is justified, and there is a failure to establish such justification, accompanies the permission to 'a defendant to avail himself of that provision, by requiring the circumstances to be set out in the answer with the justification, but only in reduction of damages. If the framers of the Code had" considered circumstances in mitigation to be a defense, and an answer to a cause of action within the meaning of the 150 th section, there would have been no necessity to require a defendant to set up such circumstances, hut simply to have said that setting them up as a defense .with a justification, should not deprive the defendant of the right of proving them, whatever became of the justification. . But the 165th section contains two provisions, first, for alleging such circumstances in the answers along with a defense of truth, and secondly, of allowing evidence of them when so alleged, notwithstanding such defense. The injustice of the former rule, as to allowing matters in- mitigation before a sheriff’s jury, is not so apparent as to favor such an interpretation'. I am compelled, therefore, to follow Judge Duer’s opinion already alluded to; sustained as it is by its own reasons, and the opinion of Justices Johnson and Harris already referred to, (Graham v. Stone, and Brown v. Harris,) in place of the views of Justices Allen and Selden in the case also before referred to, (Bush v. Prosser,) which as they were not necessary to the decision of the case, I may be excused for looking upon as obiter dicta. The motion to make definite and certain the statements in the answer of ,circumstances in reduction of damages, must therefore be denied.' They could not be struck out as frivolous, because they accompany a justification of the publication complained of, which is permitted by the Code. (§150.)
    I think the ninth defense sufficiently definite and certain as to the name of the sharpers of both sexes and persons of improper character who frequented the plaintiff’s exhibition by the permission of his agents, because the defendants state such names to be unknown; but not so as to the agents of the plaintiff alleged to have furnished free tickets of admission to such improper persons, because he is entitled to be prepared to prove their want or excess of authority. So also as to the subscribers and stockholders who have' complained to the defendants, whose names it must be presumed they know, if they know them to be such subscribers or stockholders. In those respects the motion must be granted, as to the names or other description of such agents and stockholders, but denied as to the rest.
    
      Eo judgment can be given on the demurrers, as they merely raise an immaterial issue of law, but -an order may be made overruling them for that reason, and the motion must be denied except in the matter before stated. Eo costs can be allowed to either party on the demurrers and motion; and there being no judgment, there is no need of giving leave to amend, but. the plaintiff may withdraw his demurrer if he finds it necessary.
    
      S. B. H. Judah, for the plaintiff, appellant.
    I. In civil actions for libel, the defense of a justification must be in accordance with section 165 of the Code. The true construction of this section is, that, although the truth may be given as a justification, yet if the truth itself is unjustifiable, that is, published maliciously and with an evil intent, and for no good purpose, it is no justification. (Holt’s Law of Libel, 48, &c.) 1. In setting up the truth as a justification, the defendant is bound to show that the publication of such truth was for justifiable ends, and with good motives. (26 Wend. 383.)
    2. The facts on which he relies must be so specifically set up that they apprise the plaintiff of the defense. (Holt’s Law of Libel, 280-82. Newman v. Bailey, cited 1 T. R. 750. Lanson v. Street, 2 Chit. Pl. 503-506 and cases cited. 1 id. 487, in notes.)
    
    ■ 3. The Code has not altered the substance or form necessary to be pleaded ip a defense of the truth in justification.
    II. The causes set out in the demurrer to the second separate defense are good causes of demurrer.
    1. Where a defamatory charge is made in general terms, it is not sufficient to answer that such charge is true. The justification must be made by a specification of the facts which are relied on to establish the truth.
    
      (a.) The plaintiff is .not compelled to make an answer, bad in substance, good, by calling on the defendant to make it definite and certain. (5 How. Pr. 470. 6 id 258-84. 3 id. 406, and see cases cited in note to § 165 of Code, Voorhies’ ed.)
    
    
      (b.) By a plea that is defective in form apd substance no jpstification is made out, and where the libel in its character is general, a justification on the ground of its truth should have set out the facts specifically. (Fry v. Bennett, 1 Code R. (N. S.) § 238.) The matter,-facts, time, place and names of persons must be set out particularly. (Fabricotti v. Launay, 1 Code R. (N. S.) 121. 25 How. Pr. 419.)
    (c.) An answer is insufficient not only where it sets up a defense groundless in law, but when, in the mode of stating a- defense otherwise valid, it violates the rules of pleading. (5 Sandf. 54.)
    2. Even if well pleaded, the matter relied on in the answer does not amount to a justification. The defendants have no right to libel by even publishing the truth. Their position of journalists does not license them to attack the character or business of any man in the community. If privileged, such privilege does not appear in the answer. But the public journalist has no privilege to publish a libel beyond any citizen, who has no printing press. It is no part of the duty of a person conducting a newspaper to slander and defame character. It is simply his business to disseminate useful knowledge among the people, and the current events of the day happening at home or abroad. (Hunt v. Bennett, 19 N. Y. Rep. 173. Hotchkiss v. Oliphant, 2 Hill, 513, per Nelson, J.)
    
    III. The positions in the second point apply in every respect to the third separate defense or answer, with additional objections:
    1. In the third answer there is an attempt to make a double issue; one that the facts are true, and the other, that the calumny originated from and was circulated by others than the defendants. The Code has not altered the cardinal principles of pleading a double plea is bad for such duplicity. It contemplates a single answer, (§ 150.) Each separate defense is to be separately pleaded. (4 Kern. 469. 21 N. Y. Rep. 399.)
    2. If the defendants sought to shift the origin of the libel to others, even the giving of names and particulars would not relieve thorn from responsibility. Such disclosures would not even mitigate damages. (Dale v. Lyon, 10 John. 447. Mapes v. Weeks, 4 Wend. 659. Inman v. Foster, 8 id. 602.)
    3. But even if the allegation that other persons disseminated the libel forms a justification, the answer is bad in substance, in not setting out the names of the persons, time, place, and other particulars or specification. (2 Chit. Pl. 507, n. f. 7 T. R. 17-19. 2 Fast, 426.)
    4. The answer or defense is not as broad as the charge, and therefore does not amount to a justification. Each separate defense or answer must contain all that is requisite to answer the whole cause of action. (Code, § 222, cases cited in note. 7 Abb. 378. 2 Bosw. 694. 4 id. 391.) Resort cannot be had to one plea, to make another full, (4 Bosw. 391. 10 Abb. 266.)
    IV. The matters of the 6th, 7th, and part of the 8th defense, moved to be stricken out, do not amount to a defense, nor could they be given in evidence in mitigation of damages. It is no excuse for irrelevant and redundant matter that it is new. .“•Irrelevant,' means matter impertinent, frivolous, and having no bearing on the issue. It is an incumbrance on the record.”
    Mitigating circumstances are those which the well defined rules of law allow in evidence in mitigation of damages. (1 Code Pl. N. S. 181.) Newspaper editors or journalists have no privilege to libel or slander. The matters set up in the 6th and 7th answers are, therefore, surely not mitigatory. Nor is the part of the 8 th answer complained of admissible in evidence (being foreign to the issue.) The rule is clear when the matter does not amount to a' mitigation; it should be stricken out as irrelevant and redundant. (3 How. Pr. 406. 6 id. 15. 10 id. 128.)
    2. The 6th and 7th defenses are not accompanied by a jus-' tification, but only refer to denials of malice in the other answers. If every separate defense stands by itself, irrespective of the other answers, and the opinion at special term, that mitigatory circumstances can only be pleaded with a justification, be correct, then the 6 th and 7th answers, consisting of matter only pleaded in njitigation, are frivolous. They do not amount even to a mitigating defense, and.make an immaterial issue, and being such are irrelevant. (Abb. 331. 4 Sandf. 668. 1 Code, R. N. S. 102, 404. 5 How. Pr. 476.)
    3. The charges or allegations in the answers are general, and do not amount to mitigating circumstances. (Russ v. Brooks, 4 E. D. Smith, 645.) They do not apprise the plaintiff of the specific grounds of the defense ; general report, common gossip, popular clamor, are not admissible in evidence as mitigating circumstances, and are irrelevant. (6 How. Pr. 15. 13 id. 97.) An answer setting up mitigating circumstances, if irrelevant, will be stricken out on motion. (10 How. Pr. 128.)
    Y. The 4th, 6th, 7th, and part' of the 8th defenses in the answer, are not sufficiently definite and certain, and should be made so.
    1. Matter set up in mitigation of damages in a suit for slander or libel, is a defense within the meaning of the Code. It has been questioned whether it amounts to a defense, standing alone, but there is no doubt, when accompanied by a justification in the same answer, such a defense is not a notice, but a part of the defense or answer.
    
      (a.) The opinions of Selden and Allen, JJ. in Bush v. Prosser, (11 N. Y. Rep. 347,) are a correct exposition of the statute, sections 150 and 165. The language of the last section is: “ The defendant may in his answer allege both the truth of the matter charged as defamatory and any mitigating circumstances.” However subtle the reasoning of Duer, J. in Otto v. Newman, (4 Sandf. 669,) it cannot destroy the plain words of the statute.
    
      (b.) The distinction is obvious, that itr libel and slander, the Code specifies the kind of defense that may be set up, while it leaves matter in mitigation, in other torts (assault and battery, &c.) to be given in evidence to reduce the damages ; in other words, in this one case, it directs the mitigating circumstances to be pleaded.
    (c.) The very nature of the case is such, where the charge is general, the matter in mitigation should be specifically set out in the answer, to apprise the plaintiff, what he-is to meet.
    
      2. Even if taking the name of an answer, it can be characterized as in the nature of a notice, it still should be specific, and if not, justice would direct it to be made definite and certain ; the question of its effect should not be left to the- time of trial to be decided whether, under a notice general in its charges, specific matter could be given in evidence.
    3. The plaintiff has the right to demand under section 160, that a general pleading should be made definite and certain, or it should be stricken out as irrelvant.
    
      A. O. Hall, for the defendants, respondents.
   By the Court,

McCunn, J.

The appeal in this case is from an order made at special term by the chief justice overruling the demurrers of the plaintiff to the- second and third portions of the defendants’ answers, and also denying the plaintiff’s motion, which is of an extraordinary mixed nature, to compel the defendants to make more certain and definite the fourth, fifth, sixth, seventh, and eighth defenses of the answer, as well as to strike out as irrelevant and redundant the sixth and seventh and part of the eighth defenses of said answer and any of the defendants’ answers, as specified in the plaintiff’s notice of motion at special term.

In regard to the question of the demurrer, there can be no doubt that the chief justice was clearly right in overruling it. The portions of the answer demurred to certainly do not contain new matter that constitutes a counter claim or defense, as provided for by the 153d section of the Code. . These portions of the answer merely deny the allegations of the complaint, and are properly, pleaded.

The case cited by the chief justice (Smith v. Greenin, 2 Sand. 702) is fully sustained by the case of Newman v. Otto, decided by Chief Justice Duer, (4 Sandf. 669.)

The motion to render more definite and certain the fourth, fifth, sixth, seventh and eighth defenses was properly denied. Such allegations operate as a mere notice, if they form part of the answer.

This doctrine was so held in the case of Graham v. Stone, and Brown v. Orvis, both being cases decided in the Court of Appeals, and is so well settled that no doubt .can now arise in regard to this principle in actions for libel and slander. So also in regard to the ninth defense of the answer.

It is certainly definite enough on this principle to fully apprise the plaintiff of the defense to be adopted on the trial, and to prepare him-to meet the issue. It specifically alleges that the cards of free admission were furnished by the plaintiff’s regular agents, and that some of the stockholders and subscribers complained to the defendants of said things, and such foregoing matters were publicly canvassed by the general public.” The chief justice, however, seems to think that the defendants should be compelled to allege the names of these regular agents of the plaintiff, and also of the stockholders and subscribers who complained to the defendants. But this he bases simply upon the presumption that the defendants knew their names, for the reason that they do not allege that their names are unknown. On the general principle maintained by the learned. chief justice, and sustained by the cases cited by him, I can see no reason for an exception in this regard, and although fully concurring with him in his very lucid and able opinion, I must differ with him in regard to granting the motion to compel the defendants to allege the names of the agents and stockholders, and subscribers referred to in that portion of their answer; but this portion of the order not having been appealed from by the plaintiff, the entire order at special term must be affirmed with costs.  