#### Eleanor Rawls Reader, Appellant, *v.*James B. Haggin, Respondent.

(No. 1.)

First Department,

January 10, 1908.

Pleading—libel — bill of particulars of partial defense denied.

A bill of particulars of defenses not involving a counterclaim may be ordered, tvs of matter pleaded in justification of libel.

In answer to a complaint for libel in describing a mining company of which the plaintiff was an officer as a “ fake concern,” and that the plaintiff and other officers were frauds, blackmailers, liars, etc., it was alleged as a separate and partial defense and by way of mitigation of damage that the defendant was a stockholder in a widely known mining corporation having valuable properties; that the plaintiff, and others organized a company of a similar' name for the purpo:e of deceiving the public, issued false prospectuses representing that the plaintiff’s corporation controlled mines which it did not own and was joint owner with the defendant’s corporation of some of' its richest mines and procured an employee of th.e defendant’s corporation to prevent its acquisition of *490other mine's, etc. On a motion for a bill of particulars of the: separate and - partial defense, »

*Held,*that in so far as the matters therein pleaded as a partial defense -and by way Of mitigation were not specific and definite charges, they related solely to the motives of the plaintiff, to' the official action of the company or its- officers in which she participated, or to printed matter prepared and issued by her and other officers of the company,, and' hence a bill of particulars should be denied, for proof offered under such allegations would not take the plaintiff by sur- ■ prise; she being as well prepared to meet the allegations as if furnished with particulars. . '

Appeal by the. plaintiff, Eleanor Rawls Reader, from an order of ■ the Supreme Jdourt,. made at the New York Special Term and entered in the office of the clerk of the cormty of New York on the 31st day of May, 1907, denying the plaintiff’s- motion for a bill of particulars of the second separate and partial defense contained in the answer.' '

*Alexander S.*Bacon, for the appellant.

*Clifton P. Williamson,*for the respondent.

Laughlin, J.:

The action is to recover damages for slander, . The alleged slander relates to the plaintiff’s connection with the Cerro de Pasco Tunnel and Mining Company. The slanderous words alleged to have been uttered by the defendant of and concerning the plaintiff are as follows: ’ . '

“The Cerro de Pasco Tunnel and Mining Company (a company of which the plaintiff herein was then, and still is an officer) is a fake concern ; it is a strike against me (meaning the defendant) and my associates; that Cerro de Pasco Tunnel and Mining Company has no property, and it has ho mines, and is a fraud on those who have been induced, to. buy its stocks; .it is a. fake concern; its officers (meaning this plaintiff, among others) are frauds, blackmailers and liars, and have published false statements about, the financial condition, alleged property rights and business, of the company, and . the purpose of the - company is to blackmail me and .my associates . as owners of mines in Peru.”

The complaint contains seven counts, each alleging the utterance of the same slanderous words, but'-to different people'arid at different *491times. The facts pleaded “ for a separate and distinct partial defense to the entire amended complaint "herein and by way of mitigation of damages,” concerning which the plaintiff desires a bill of particulars, are in substance that the defendant was a stockholder in the Cerro de Pasco Mining Company, a widely known and reputable corporation, owning valuable mines in the Cerro de Pasco district of Peru; that the plaintiff and others organized the Cerro de Pasco Tunnel and Mining Company, mentioned in the alleged slanderous utterances under a name closely resembling the name of the company in which the defendant was a stockholder, for the purpose Of deceiving the public and inducing the investment of money in its stock and obligations, in the belief that it was the company in which defendant was a stockholder, to his injury and to the injury of his company; that the jilaintiff and the other officers of the company with which she was connected issued or caused to be issued prospectuses and advertisements, falsely stating and repre-' senting that their corporation owned or controlled mines and other properties which it did not own or control, and that it was joint owner with the defendant and certain of his associates in some of their richest mines in said district of Peru and thereby induced the purchase of stock in the new company in the belief that such statements were true ; that with the purpose and intent of causing the older company, in which defendant was a stockholder, and the defendant and his associates as owners of mines in Pern, great injury and pecuniary loss and of extorting money from them, and of hindering, embarrassing and otherwise injuring them in the acquisition of mines in said district,.the plaintiff procured the new company to be incorporated with a name' closely resembling the other and requested one Juan Garland, who then was and prior thereto had been employed in Peru by the old company and by the defendant and his associates to betray his employers and prevent their acquisition of certain mines hy inducing and procuring parties in Peru who had made contracts under which their mines were to be acquired, to violate such contracts and to institute legal actions and proceedings to recover possession of the mines and sought to coerce the old company, the defendant and his associates into paying a large sum of money “ to the plaintiff and her said corporation.”

A demand for affirmative relief is not essential to. authorize the *492court to direct a bill of particulars, and' bills of particulars are granted. of defenses not involving a counterclaim or demand for affirmative relief, as of a defense of breach of warranty to an action on an insurance policy *(Dwight*v. *Germania Life Ins. Co.,*84 N. Y. 493), or of contracts interposed as a defense *(Kelsey*v. *Sargent,*100 id. 602), or of matter pleaded in justification in libel (*Wynkoop, Hollenbeck, Crawford Co.*v. *Albany Evening Union Co.,*26 App. Div. 623), but doubt has been expressed in some cases as to the propriety of requiring or the authority of. the court to order a bill of particulars with respect to matter pleaded as a partial defense or in mitigation of damages. (See *Hatch*v. *Matthews,*85 Hun, 522, 529; *Newell*v. *Butler,*38 id. 104; *Holmes*v. *Jones,*13 N. Y. St. Repr. 57.) It is unnecessary in this case to resolve the doubt bn that point and since matter pleaded as a partial defense or by way of mitigation may, in some instances; render admissible the introduction of evidence which may reduce the recovery to nominal damages, in which case it would differ from a complete defense only' in a very small degree, I deem it inadvisable at this time to express an opinion on the question.

In so far as the ■ matters pleaded as a partial defense and by way of mitigation are not specific and definite charges, they relate to the motives of the plaintiff, to official action by the company with which she was connected or its officers in which she participated, or to printed or written matter prepared and issued, or caused to be prepared and issued by her and other officers of the company. It is not probable that any proof will be offered under these allegations which will take the plaintiff by surprise, or which she will not be as well prepared to meet as if defendant were required to furnish her a bill of particulars.

■ It follows that the order should be affirmed, with ten dollars costs and disbursements.'

Patterson, P. J., Ingraham,. Clarke and Scott, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.