
    Louis Canale, Respondent, v. Press Publishing Company, Appellant.
    
      Libel — supplemental answer setting up justification, allowed where the truth of the facts alleged is learned only after the original answer is served.
    
    Where the defendant in an action for an alleged libel, which in substance charged the plaintiff with selling fraudulent naturalization papers and procuring fraudulent naturalization, interposed an answer which did not set up the defense of justification, but subsequently learns, upon the return of a commission to take the testimony of a witness m a foreign country, that the plaintiff had actually sold fraudulent naturalization papers to the witness, the defendant should be allowed to serve a supplemental answer setting up that fact.
    Appeal by the defendant, the Press Publishing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1901, denying defendant’s motion for leave to serve a supplemental answer.
    
      James W. G-era/rd, for the appellant.
    
      John E. Eustis, for the respondent.
   Ingraham, J.:

This action was for libel, which in substance charged the plaintiff with selling fraudulent naturalization papers and procuring fraudulent naturalization. In the original answer interposed the defendant did. not attempt to justify; and it was only upon the return of a commission appointed to take the testimony of a witness at Genoa, Italy, that the defendant was informed that the plaintiff had actually sold fraudulent naturalization papers to the witness, whereupon the defendant applied for leave to serve an amended answer, by which it is alleged that the said plaintiff had sold fraudulent naturalization papers.

I can see no reason why the defendant should not be allowed to serve such an answer If the plaintiff is guilty as charged in this article, he is guilty of a serious crime ; and the defendant, the publisher of a newspaper, in exposing it performed a meritorious and important public service; and while the publisher should be held to a strict responsibility for what it publishes in regard to an individual, at the same time, where the. charge is true, the newspaper performing this public service should not be prevented from proving the truth. The witness whose testimony was taken under commission testified that the plaintiff sold him a fraudulent naturalization paper which upon its face purported to make him a citizen. This the plaintiff denies; but the question should not be tried upon affidavits, but by a jury, where the witnesses can be cross-examined and the question determined in the way provided for by law for the disposition of issues of fact of this character. There seems to have ■ been ho Zaphes in making, the application, and I think the defendant should be allowed to plead the justification. There does not appear to be any reason, however, for allowing the defendant now to deny that it publishes the. World newspaper.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements of this appeal, and the motion to allow the defendant to serve the proposed amended answer, except so far as it denies publishing the newspaper called the World, should be granted upon payment of the costs of the action after notice of trial and ten dollars costs of motion, the case to maintain its position upon the calendar in conformity with the provisions of section 723 of the Code of Civil Procedure.

Van Brunt, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion upon payment of the ■ costs of the action after notice of trial and ten dollars costs of motion, the case to maintain its position on the calendar.  