Sellmar M. Jacoby, Doing Business under the Firm Name or Style of S. M. Jacoby Company, Appellant, Respondent, v. Emile James, Respondent, Appellant

Sellmar M. Jacoby, Doing Business under the Firm Name or Style of S. M. Jacoby Company, Appellant, Respondent, v. Emile James, Respondent, Appellant. First Department, January 21, 1910. Pleading — libel—justification. A plea that the facts stated in an alleged libel are true is a complete defense, but being a plea of confession and avoidance it must admit the publication. Hence, a defense which alleges that the matter complained of is substantially true, but was never published or circulated by the defendant, is had on demurrer. The defense is also bad because a justification must be as broad as the libel. The defense is not saved because a succeeding paragraph alleges that in mitigation of damages the defendant repeats the matter formerly stated, and will give evidence thereof in mitigation of damages as well as in justification, for as the pleader treated the prior paragraph as a complete defense in justification the court will so treat it. Cross-appeals by the plaintiff, Selhnar M. Jacoby, doing business under the firm name, etc., and the defendant, Emile James, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New..York on the 22d day of September, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling ¡the plaintiff’s demurrer to two defenses set forth in the defendant’s answer, and sustaining a demurrer as to another defense in an action for libel. Samuel I. Frankenstein for the plaintiff. - Albert R. Lesimsky of counsel \_Robert■ JET. Hibbard with him on the brief], for the defendant. [MAJORITY — Clarke, J.:] Clarke, J.: The demurrer to the second partial defense was properly overruled and the demurrer to the fourth defense was properly sustained. The answer alleges as follows: “ And for a third defense and in justification .of the statements contained in the letter complained of, defendant alleges, Sixth: That the matter complained of, although never published or circulated by this defendant, was and is substantially true;” and then proceeds to set up certain parts thereof as true. This is plead as a complete defense and the truth is a defense in an action for libel and justification means a plea of the truth.; but the plea of justification is a plea of confession and avoidance and must admit the publication of the alleged defamatory words. This the defense does not do, but specifically alleges that the defendant “ never published or circulated” the alleged libel. The defense is, therefore bad, and it is also bad because the justification is not as broad as the libel. The demurrer thereto was, therefore, improperly overruled. Nor is the defense saved because in the 7tli paragraph of the answer it is alleged “ that in mitigation of any damages to which plaintiff might otherwise appear entitled, because-of the .publication of said alleged libelous matter set forth in said complaint, this defendant repeats and renews all and singular the matter stated under the third defense herein and will give evidence thereof as a partial defense in mitigation of damages as well'as in justification,” because while not numbered as a fourth and partial defense, that is what it is, as matter of-fact and law, and as by the language of the 7th paragraph the pleader has characterized the 6th paragraph as the third defense, the court must treat it as he has, as a complete defense in justification. It follows, therefore, that the interlocutory judgment appealed from should be modified by sustaining the demurrer to the third defense, and as so modified affirmed, without costs to either party, with leave to the defendant to serve an amended answer within twenty days after the service of the order to be entered hereon, on payment of costs in the court below. Ingraham, P. J., Lattghlin, Scott and Miller, JJ., concurred. Judgment modified as stated in opinion, and as modified affirmed, without costs to either party, with leave to defendant to amend on payment of costs in the court below.