Charles B. Andrus, Appellant, v. John C. Harris, Respondent

Charles B. Andrus, Appellant, v. John C. Harris, Respondent. Third Department, May 22, 1908. Slander—defenses — demurrer — costs. In an action for slander, facts showing provocation are good as a partial defense; but a demurrer will be sustained to an allegation of facts neither provocative nor brought to the defendant’s knowledge before the slander. Although demurrers to various defenses have been sustained, an amendment should be conditioned on the payment of a single bill of costs. Kellogg, J., dissented in part. Appeal by the plaintiff, Charles B. Andrus, from so much of an interlocutory judgment of the Supreme Court in part in favor of the defendant, entered in the office of the clerk of the county of Sara-toga on the 14th day of November, 1907, upon the decision of the court, rendered after a trial at the Saratoga Special Term, as overrules the plaintiff’s demurrer to the third and fifth answers and defenses set up in the amended answer to the first cause of action set up in the complaint. William S. Ostrander, for the appellant. W. E. Bennett, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : In our opinion the third defense is good as a partial defense, as it alleges facts which may be considered a provocation for the utterance claimed to be slanderous. The fifth defense is not good, because the matters alleged are neither matters of provocation, nor are they shown to have been brought to the knowledge of the defendant before the utterance alleged to be slanderous. Judgment should, therefore, be modified so as to sustain plaintiff’s demurrer to the fifth defense, with leave to amend upon payment of costs of the demurrer. Only one bill of costs, however, is to be charged the defendant for the privilege of amending, if the defendant shall avail himself of the right to amend the second and fonr.th defenses under the privilege granted him in the original judgment. As thus modified the interlocutory judgment is affirmed, without costs of this appeal. All concurred, except Kellogg, J., who considered the fifth defense proper in mitigation. Interlocutory judgment modified as per opinion, and as so modified affirmed, without costs of this appeal.