
    Joseph Jansen, Appellant, v. Louis Fischer, Respondent.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Slander — Demurrer to a defense of justification — When not properly overruled on the theory that matter alleged in justification and mitigation together constituted but one defense.
    The answer interposed in an action for slander stated “And for a first, separate and distinct defense to the complaint herein, and by way of justification thereto,” following which was new matter which was alleged to constitute a justification. Nothing was said in such matter concerning mitigation of damages. Finally, in a separate paragraph, the answer stated as follows: “ That in mitigation of any damages to which plaintiff might otherwise appear to be entitled by reason of the alleged slanderous words set forth in the complaint, this defendant repeats and renews all, and singular, the matter stated under the separate defense hereinbefore set forth and will give evidence thereof as a partial defense in mitigation as well as in justification upon the trial of this action.”
    
      Held that a demurrer interposed to the separate defense get forth by way of justification should not be overruled upon the theory that the matter alleged in justification and mitigation taken together constituted but one defense, and that, as the said matter was sufficient in mitigation of damages, the demurrer was untenable although such matter was not sufficient as a justification owing to the fact that the justification pleaded was not as broad as the charge.
    Appeal by the plaintiff from an interlocutory judgment oí the City Court of the city of ¡New York, in favor of the defendant overruling plaintiff’s demurrer to the.separate defense set forth in the amended answer by way of justification.
    I. Henry Harris, for appellant.
    Paskus & Cohen (Martin Paskus and Arthur B. Hyman, of counsel), for respondent.
   Per Curiam.

The action is for slander. The amended answer sets up: First: A general denial. Second: Justification as a complete defense. Third: Mitigation as a partial defense. Plaintiff demurred to the separate defense set forth by way of justification. The demurrer was overruled by the court below upon the theory that the matter alleged in justification and mitigation, taken together, constituted hut one defense, and that as the said matters were sufficient in law in mitigation of damages, the demurrer was untenable. This would have been correct under the decision of Doyle v. Fritz, 86 App. Div. 515, if the new matter had been pleaded in a single count both by way of justification and in mitigation. But such is not the ease here. The statement in the case at bar following the general denial is as follows: “And for a first, separate and distinct defense to the complaint herein, and by way of justification thereto.” Then follows the new matter in which nothing is said about mitigation of damages. Finally in a sepárate paragraph, viz: paragraph V, the following is set forth: “That in mitigation of any damages to which plaintiff might otherwise appear to be entitled by reason of the alleged slanderous words set forth in the complaint, this defendant repeats and renews all, and singular, the matter stated under the separate defense hereinbefore set forth and will give evidence thereof as a partial defense in mitigation as well as in justification upon the trial of this action.”

It thus appears that, however faulty the pleading of the defendant may be in substance, it followed the Code in alleging separately, first justification as a complete defense, and then mitigation as a partial defense. That being so, the plaintiff had a right to test on demurrer the sufficiency of the plea of justification as a complete defense apart from the partial defense in mitigation. Upon the application of the proper test for that purpose, namely whether the justification pleaded is as broad as the charge, there being no question of privilege, its utter insufficiency in law is at once so apparent that no discussion of it here is necessary.

The judgment should be reversed, with costs, and judgment ordered for plaintiff upon the demurrer with costs, with leave to defendant to amend upon payment of said costs.

Present: Freedman, P. J., Bischoff and Fitzgerald, JJ.

Judgment reversed, with costs, and judgment ordered for plaintiff upon demurrer, with costs, with leave to defendant to amend upon payment of costs.  