Hollingsworth v. Spectator Co.

65 N.Y.S. 812 | N.Y. App. Div. | 1900

Hatch, J.:

This is an action for libel brought by John E. Hollingsworth to recover $10,000 damages alleged to have been caused by the publication of a certain article in an insurance paper called The Speetch tor, owned by the defendant corporation.

The 3d paragraph of the defendant’s answer sets up certain facts in mitigation of damages ; the 4th paragraph, to which the demurrer is interposed, denies each and every of the innuendoes set up by the plaintiff in his complaint, and alleges that such innuendoes are false and untrue and that the words used in the alleged libelous article had not and have not the meaning ascribed to them by the plaintiff, and avers that the plaintiff has enlarged and altered the meaning of the words and language used by the defendant in its said article.

The first branch of the demurrer is to this 4th paragraph alone. The court below held that this paragraph was a part of and a continuation of the 3d paragraph, and a part of the third separate defense, and overruled the demurrer as to said paragraphs.

This construction of the pleading was clearly right, and the demurrer was properly overruled. A demurrer will only lie to the whole of a cause of action or defense, and not to a separate paragraph of a pleading. It must be taken to the whole pleading, or to the whole of one or more causes of action or defenses. (Code Civ. Proc. §§ 492, 494; 1 Rumsey Pr. 377, 378; Hackley v. Draper, 4 T. & C. 614; Lord v. Vreeland, 15 Abb. Pr. 122.) But if the paragraph stood alone we are of the opinion that it would not be demurrable, for where, as in this case, the meaning of the alleged libelous words is ambiguous; an issue may be joined upon the meaning assigned to the words by the innuendo. The defendant can either deny that he ever spoke the words, or he can admit that he spoke them but deny that they conveyed, the meaning attributed to them by the pleader. (Morse v. Press Publishing Co., 49 App. Div. 375, 378.)

As to paragraph 7, to which the demurrer was overruled, we are of the opinion that the decision of the court below is correct. The matters therein set forth are alleged as a justification, and while it is not a model of good pleading, much of the matters set forth being evidence, yet enough may be gleaned from it to admit evidence tending to justify some of. the charges made. It does not, therefore, violate the rule invoked by the plaintiff, viz., that the justification shall be as broad as the charge; this rule does not mean that an answer in justification must be broad enough to embrace every slanderous charge stated in the complaint. Where several separate and distinct things are charged, as plaintiff alleges is done in this case, the defendant may justify as to one, though he fail as to the others. (Lanpher v. Clark, 149 N. Y. 472.)

The interlocutory judgment should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.