
    John H. Stock, Respondent, v. Henry Keele, Appellant.
    
      Blander—eha/rge that the plaintiff, a supervisot-, “ is short six thousand dollars-in his accounts and ought to be behind the bars”—a justification thereof, that for other acts the plaintiff “ ought to be behind the bars ” is bad— the charge must-be proved, and the justification cover it, in its entirety.-
    
    Where the plaintiff in an action of slander charges the utterance of a single,, entire slander, he must prove the same as charged; if the defendant desires to justify such an alleged slanderous utterance, he must make his justification, coextensive with and as broad as the charge.
    
      Where the alleged slander consists of separate divisible charges against the-plaintiff, the defendant may deny one or more of such charges, and admit and justify the others.
    The complaint in an action of slander brought by one Stock, a former supervisor of the town of Cheektowaga, charged that the defendant, “ intending to accuse this 'plaintiff of having been dishonest and corrupt in public office, to-wit, while supervisor of the town of Cheektowaga * * * spoke these words: ‘ Stock is short $6,000 in his accounts in Cheektowaga, and if be had his just dues he would be behind the bars; * * also that defendant said to plaintiff’s son, referring to said plaintiff, “ ‘ His dad is short six thousand dollars in his accounts and ought to be behind the bars.’ ”
    The defendant, by his answer, denied that he said of the plaintiff that he was. short in his accounts, but admitted that he said of and concerning him that he ought to be behind the bars, and then set up, in justification of the last statement, that the plaintiff, while supervisor, had been guilty of various wrongful and dishonest acts. None of such acts pleaded in justification related to or constituted any shortage in the plaintiff’s accounts.
    
      Meld, that the slanderous statement alleged in the complaint to have been uttered by the defendant did not consist of two distinct and separable charges against, the plaintiff, to wit, that he was short in his accounts and that he should be behind the bars, but constituted a single, entire and indivisible charge, to the effect that the plaintiff was short in his accounts, and, for that reason, should be behind the bars, which charge the plaintiff was obliged to prove, and the defendant .justify, in its entirety;
    That the defense of justification interposed by the defendant was demurrable, for the reason that it did not embrace the entire slanderous charge, but simply that portion thereof which stated that the plaintiff ought to be behind the bars.
    Appeal by the defendant, Henry Keele, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 8th day of April,. 1903, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining the plaintiff’s demurrer to the third, defense set forth in the defendant’s answer.
    
      C. W. Sickmon, for the appellant.
    
      Charles Diebold, Jr., for the respondent.
   Hiscock, J. :

This action is brought to recover for an alleged slander uttered by the defendant of the plaintiff. The answer or defense under review set forth certain matters in justification of what defendant •admitted he said upon the occasion in question and which admission ■covered only part of the statement imputed to him by plaintiff.' The demurrer was sustained upon the ground, as we understand it, that •defendant’s justification was not as broad as the charge, and, therefore, the answer was not sufficient. We think that the decision ■should be sustained.

Plaintiff was a former supervisor of the town of Cheektowaga. •Ilis complaint charged that the defendant intending to accuse this plaintiff of having been dishonest and corrupt in public office, to wit, while supervisor of the town of Cheektowaga * • '•• * ■spoke these words: £Stock is short $6,000 in his accounts in •Cheektowaga, and if he had his just dues he would be behind the ■bars; * * also that defendant said to plaintiff’s son, referring to said plaintiff, “ ‘ His dad is short six thousand dollars in his ■■accounts and ought to be behind the bars.’ ”

Defendant, by his answer, denied that he said of plaintiff that he was short in his accounts, but admitted that he said of and concerning him that he ought to be behind the bars, and then by the defense ■demurred to set up in justification of the last statement so admitted to have been uttered that plaintiff, while supervisor, had been guilty •of various wrongful and dishonest acts. Hone of the acts so charged in justification, however, related to or constituted any shortage in liis accounts.

The rules by which to determine whether the judgment appealed ■from is correct and defendant’s answer insufficient are very simple. They are substantially conceded by both sides.

Where the plaintiff charges the- utterance of a single, entire •slander, he must prove the same as charged; and where a defendant desires to justify such an alleged slanderous utterance, he must make his justification coextensive with and as broad as the charge. A third rule well settled is'that where the alleged slander consists of separate divisible charges against the plaintiff, the defendant may deny one or more and admit and justify the others. As stated, these Tules are simple and well established, and the only confusion possible is in their application. We think that it is in this respect that the learned counsel for' the appellant labors in error upon this appeal. He contends that the alleged slander charged by plaintiff to have been uttered by defendant consists of two distinct and separable charges, and that, therefore, it is permissible for him to do as he has, deny one and admit and justify the other. To our minds it is very clear that upon the contrary the statement alleged to have been made by defendant constitutes a single, entire, indivisible charge, with the resultant consequences that plaintiff must prove it and defendant must justify it in its entirety. We think that a reading of the language used in the light of a reasonable construction must at once lead to the conclusion adopted by us. With the innuendo employed the alleged charge was, in substance, that plaintiff was $6,000 short in his accounts, “ and if he had his just dues he would be behind the bars,” and again, “ and ought to be behind the bars.” Upon reading this alleged statement of shortage in plaintiff’s accounts as supervisor, with the other one that he ought to be behind the bars, connected as they are by the word and,” the query, why should plaintiff be behind the bars, immediately suggests the answer, because he was short in his accounts. It would be unnatural and difficult to infer or search for some other reason for which he should be incarcerated. It would be unreasonable to so construe the language as to permit the conclusion that defendant meant that plaintiff ought tobe behind the bars for murder or arson or the commission of some of the offenses charged in the answer when no suggestion is made of any such crime, and there is the suggestion of the other dereliction upon his part of a shortage in his accounts. The connection between the two parts of the sentence seems to be as close and. inevitable as it would be if the defendant had said of the plaintiff, He has committed murder and ought to be executed.” In the latter case we do not think it could be successfully contended that the party making the statement.meant that the accused ought to be executed for some other crime than that of murder.

Taking this view of the meaning and construction of the language used, as already suggested it follows that plaintiff must prove the slanderous charge as laid in its entirety, and that defendant may either stand upon his denial of the making of such a statement as a whole, or, if he desires to justify, must justify as to the entire charge.

Our interpretation of the language alleged to have been used by defendant as constituting a single connected statement, clearly distinguishes this case from those relied upon by appellant, and which treated of alleged slanders which were clearly divisible into two or more separate, complete accusations.

The judgment appealed from should be affirmed, with costs.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to defendant to plead over upon payment of the costs of the demurrer and óf this appeal.  