129 N.Y.S. 224 | N.Y. App. Div. | 1911
These are cross-appeals from an interlocutory judgment Overruling the plaintiff’s demurrer to the third and fourth separate defenses, and sustaining his demurrer to the second separate defense, all of said defenses being pleaded as partial defenses.
The action is for libel based upon an article published on March 10, 1909, charging plaintiff with having unfairly overreached a business associate. The second separate and partial defense charges plaintiff and certain other theatrical managers with having entered into a pooling combination to control theatres.and theatrical productions,'and sets forth an indictment of. such managers, including plaintiff, as well as a statement purporting to have been issued' by the district attorney, regarding the existence of the pooling combination and its effect. The defense is not connected' in any way with the alleged libel and appears to be designed to reduce the damages by showing that plaintiff’s character is such that a libel could not greatly injure him. ■ Respecting this defense Mr. Justice Whitney, at Special Term, said : “The second defense is an attempt to mitigate damages, not by showing plaintiff’s general bad character, but by showing that he has proved himself an undesirable person in certain' business relations not connected with or involved in the subject-matter of the publication. This is not permissible.” We agree entirely with the learned, justice in this regard, and for the reasons stated by him the demurrer' was properly sustained. The fourth separate defense reiterates the objectionable matter contained in the second separate defense, and if it included nothing else would be equally .open to demurrer. But it also contains the allegations, frequently to be found in answers in actions for libel, tending to show, in mitigation of damages, that the statements complained of were communicated to defendant by persons and from sources which it had theretofore found to be reliable and which it then believed to be reliable, and that in publishing the article complained of defendant relied upon the statements made to it and believed the said article to be true. The fourth separate defense is demurred to as a whole and must be considered as such, and .since it contains matter which is relevant as a defense it is not
The interlocutory judgment appealed from, in so far as it sustained the demurrer to the second separate defense and over
Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred.
Judgment so far as it sustains demurrer to second defense -affirmed; so far as it overrules demurrer to third defense reversed and demurrer sustained, without costs to either party, with leave to plaintiff to withdraw demurrer to fourth defense, and with leave to defendant to amend answer. Settle order on notice.