
    Florence Nunnally, Respondent, v. Mail and Express Company, Appellant.
    First Department,
    June 15, 1906.
    Libel — publication charging murder and robbery — when allegations of dying declarations of decedent not good as partial defense in justification.
    When a publication charges that the plaintiff 'administered “knockout drops ” to a companion and robbed him, the article, if false, contains two charges % y. libelous per se, and a separate defense which merely sets out the dying declarations of the person to whom the poison was administered, stating that the plaintiff administered the poison, without alleging that the plaintiff in fact did so, does not state a defense in justification.
    Such allegations of dying declarations are at most mere hearsay and would not be admissible in any civil action.
    (By Ingraham, J.): A justification of a portion of a libel is not a complete but only a partial defense and must be pleaded as such. Hence, when set out as a separate and complete1 defense, it is .subject to demurrer.
    Houghton, J., dissented, with memorandum.
    Appeal by the defendant, the Mail and Express Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4tli day of January, 1906, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Charles L. Burr, for the appellant.
    
      George H. D. Foster, for the respondent.
   Patterson, J.:

The defendant appeals from an interlocutory judgment sustaining a demurrer to the second separate and distinct "defense set up in its answer. The action was brought to recover damages for an alleged libel printed in a newspaper published and circulated by the defendant. The substance of the libel is that the plaintiff committed the crimes of'murder and robbery, the victim of both offenses being a young man by the name of Melles. The article complained of charges that a poison called “ knockout drops ” was administered to Melles with the intention of robbery, and the intimation is made that the crime of robbery had been committed, and ..the article sufficiently charges fhat.the plaintiff was guilty of both' crimes. The defendant in its..a,nswer admits the ownership of the newspaper and the publication of the article alleged to he libelous and then proceeds to set up in the second defense matter'claimed to ; be .hi. justification,It is .alleged in, that. defense, that the plaintiff ■ was rñárried to One Lustig, and " that while so married she lived at various places -in the city of Mew York with Melles as his wife; that she,, another woman and Melles dined at a certain house in the city of Mew York on the evening of March 5, 1904, and spent the ' evening together; that early in the morning'of March sixth- Melles .went.to his father’s, apartment, in Mew York, and after reaching such apartment was taken.-sifik, ajad, had convulsions;. that.J)r, B.iifEn m •was .sent for and found Melles in a state of coma and exhibiting symptoms of having been poisoned by -chloral hydrate, or “ knock: out drops; ” that tills' physician, questioned Melles,i£ and was told" by him that the plaintiff had poisqnqd .him;; that said Melles" mentioned this plaintiff by name and -gave her address to Dr., Buffnm and stated that ‘she had done for me;’ that before dying and while ' sick, in the presence of his said father and sister, á-nd believing and 1'knowing that he was about tó' die,; said Melles' 'repeatedly called this plaintiff by inline and said she had done for him, that -she had poisoned' him and that-she was responsible for his. Condition; that said Melles furthef'informed-'Dr." Bu-ffum-that he: had quarrelled with plaintiff; that she wanted to get him ‘ out of the way,’ and that she had that night given him something to get rid of him ; that on March 6, 1904, and while said Melles was, seriously and dangerously ill, tile plaintiff herein telephoned' to the said apartment where said Melles then was and inquired after -said'Melles, and ‘asked as to his condition;' that-thereafter and in the afternoon of March 6,1.904, said Melles had m:©re7con vulsions and died; that. said Dr. Buinnn reported on the-death of said Melles to=GustaveSclioler, a : Coroner of the City of Mew York, and informed the police of the 31st -Precinct of the deáth -of sáid Melles, stating that -the circumstances surrounding said' death were Auspicious and -that -said Melles may have died from chloral hydrate:or cocaine poisoning.”- It is further stated iii the second defense that the faitiily of Melles, informed the ■ police tif -the circumstances uf the young mail’s death, and alsg stated in the course of the official investigation that Melles had been robbed immediately prior to his arrival at his father’s house.

This second defense must be regarded as entiró. It is. not pleaded as a partial defense, but it is sought thereby to justify the charge of poisoning. We think it may be properly said that the article complained of contains two libels; for two separate crimes are charged. It is evident that no justification of the charge of robbery is pleaded in this second defense, but if it is good at all as ■ a plea in justification it would be sustainable as to the charge of murder. (Lanpher v. Clark, 149 N. Y. 472.) But we agree with the court below that it is not a good plea in justification. It is not set forth that the poison was administered to Melles by the plaintiff, and while it is not necessary that the pleader should state in so many words that the charge is true, it is necessary in a plea in justification that the particular facts and circumstances relied upon to establish the truth of the charge be set forth in the pleading. (Robinson v. Hatch, 55 How. Pr. 55 ; McKane v. Brooklyn Citizen, 53 Hun, 132 ; affd., 117 N. Y. 634 ; Vanwyck v. Guthrie, 4 Duer, 274 ; Tilson v. Clark, 45 Barb. 178.) The facts must be stated and not the evidence of those facts. (Ball v. Evening Post Pub. Co., 38 Hun, 11.)

All that is alleged in this second defense is hearsay evidence-that the plaintiff administered chloral hydrate or “knockout drops” • to Melles, and that evidence consists of so-called dying declarations of Melles. In other words, the charge of murder is claimed to be true because Melles on his death bed, and in circumstances which may or may not have made those declarations admissible on a trial for homicide, stated that the plaintiff had administered poison to him. The justification is sought to be made through the declaration of Melles and not upon an allegation of facts tending to show that those declarations were true and that poison actually had been administered by the plaintiff. Those declarations of Melles do not even constitute evidence in a civil action. It is settled law that what are called dying declarations are admissible in evidence only" on the trial of an indictment for homicide or in -a prosecution for homicide, and they are not admissible as evidence in a civil action. In Waldele v. N. Y. Central & Hudson River R. R. Co. (19 Hun, 73) it is- said that it, is well settled that dying declarations can be received only on the trial of an indictment for homicide: . In Wilson v. Boerem (15 Johns. 286) it is said the declarations in extremis of a person who would, if living, be a competent witness, are inadmissible evidence either in a civil action or a criminal .prosecution, with the.single exception of cases of homicide. In Thayer v. Lombard (165 Mass. 174) it is said that “.the admission of the declarations of a deceased person on the ground that they are dying declarations is by the common law confined to prosecutions for homicide, and there is no statute which, makes them evidence in a civil action.” There is no law of this State which allows dying declarations to be given in evidence in a civil action; although By statute they may now be given -in evidence in prosecutions for the crime of abortion. (See Laws of 1872, chap. 181, § 6, as amd. by Laws of 1875, chap. 352.) It is not claimed by the appellant that this defense should be retained as setting up matter in mitigation.

The demurrer was properly sustained and the interlocutory judgment should be affirmed, with costs, with leave to defendant to amend on payment of costs in this court and in the court below.

- O’Brien, P. J., Ingraham and McLaughlin, JJ., concurred; Houghton, J., dissented.

Houghton,. J. (dissenting) :

1 dissent on the gfqund that the answer sets forth a justification, at least, of the charge of meretricious relations with Melles, and is sufficient in law on demurrer.

Ingraham, J. :

Section- 507 of the Code of Civil Procedure provides that' a defendant - may set forth in his answer as many defenses as he has, whether they are such as were formerly denominated legal or equitable ; but each defense must be separately stated and numbered and must distinctly refer to the cause of action which it is intended " to answer, unless it is interposed as an answer to the entire complaint ; and section 508 provides that a- partial defense may be set forth as prescribed in :tbe last section; but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. The section further provides that upon- a demurrer thereto the question is whether it is sufficient for that purpose and that matter tending only to mitigate or reduce damages in an aclion to recover for the breach of a promise to marry, or for a personal injury, or an injury to property, is a partial defense within the meaning of this section. By subdivision 9 of section 3343 of the Code, a personal injury includes a libel. A justification of a portion of a libel is not a. complete defense to the whole cause of action; when the publication charges a plaintiff with several specific acts, any one of which are libelous per se, an action brought upon the publication as a whole is a single cause of action and not a separate cause.of action as to each specific charge. An action which alleges a justification as to some of the charges contained in the libel and does not attempt to justify as to others, is not a justification for the whole libel; consequently, not a complete defense to the whole cause of action; and, therefore, under section 508 of the Code, upon a ■demurrer to such a defense, it is not good as a defense to the action and not good as a partial defense as it is not pleaded as such.

I concur, therefore, with Mr. Justice Patterson that the defense being pleaded as a separate and distinct defense, and it not being a-defense to the whole, cause of action, it is not good on demurrer.

Judgment affirmed, with costs, with leave to defendant to amend on payment of costs in this court and in the court below. Appeal from decision dismissed,, with costs. Order filed.  