SUPREME COURT.

#### Nathaniel Jeffries and another, appellants, agt. The McKillop *&*Sprague Company, respondents.

*General*Term, *First*Department,

*October*30, 1874.

*Irrelevant and redundant portions of answer—motion at speoial term discretionary*— *appeal to general term.*

The recent decisions of the court of appeals in *Livermore*agt. *Bainbridge*(47 How., 354) and in *Grey*agt. *Fiske*(53 *N. Y.,*630), have settled, definitely, that even in cases where the motion is addressed to the discretion of the justice at the special term, an appeal lies to the general term; and in such case, if the justice decides wrongly in the first, instance, it is not only the right but the duty of the general term to correct his error.

An answer in an action for libel may contain matters both in justification and mitigation, and where they are applicable to either justification or mitigation, they are properly pleaded and cannot be stricken out as irrelevant or redundant.

This is an appeal from an order denying a motion made on the part of the appellants, to strike out certain portions of the answer of the defendants (respondents) as irrelevant and redundant. The action is for a libel, alleged to have been maliciously composed and published, of and concerning the plaintiffs, by the defendants.

---, for appellants.

--, for respondents.

Lawrence, *J.*

— The defendant is'’ a corporation created and organized under the laws of the state of New York, *123whose business is that of printing and publishing books, pamphlets and newspapers relating to commercial credit, and the furnishing of information respecting the same. The plaintiffs were merchants, doing business in the city of Cincinnati, in the state of Ohio, at the time of the publication of the alleged • libel. The portion of ' the answer which it is moved to strike out, alleges that the defendants, for the purposes of their business, have connected with them other commercial agencies, with whom, including the firm of Tappan, McKillop *&*Co., they have contracts that each shall furnish to the other, to enable them to carry out their contracts with their respective subscribers, information that either may need concerning the business and commercial standing of any person or firm within the territorial district, or elsewhere, within which either of the parties to the contract may carry on busie ness. That such a contract existed between the defendants and the firm of Tappan, McKillop *&*Co., of the city of Cincinnati, prior to the 1st day of July, 1873 (the date of the alleged publication), which contract had ten years to run, from the 1st of July, 1870.

It is then averred that the words complained of were composed and telegraphed as a warning and for information to said firm, and in confidence, and for their business, and was not. to be used in any other way. And also for the purpose of eliciting a reply from said firm that would give the defendants the information they required about the commercial standing and credit of the plaintiffs, in order that the defendants might place upon their books a true and correct account about the plaintiffs, and correct the rumor as to the embarrassments of the plaintiffs, if such rumors were untrue.

Also, that the plaintiffs were, at the time of the alleged publication, subscribers to the commercial agency of Tappan, McKillop.& Co.

It is objected, on the part of the respondents, that the order in question rested within the discretion of the court, *124and that an appeal will not, therefore, lie to the general term. [ think that the decisions of the court of appeals in the very recent cases of *Livermore*agt. *Bainbridge*(47 *How.,*354), and in *Grey*agt. *Fiske*(53 N. *Y.,*630), have settled definitely that even in oases where the motion is addressed to the discretion of the justice at the special term, an appeal lies to the general term; and that in such case, if the justice decides wrongly in the first instance, it is not only the right but the duty of the general term to correct his error.

But I am not satisfied that there was any.error committed in the disposition, which was made of this motion at the special term.

■ An answer is said to be irrelevant when the matter which it sets forth has no bearing on the question in dispute, does not affect the subject-matter of the controversy, and can in no way affect or alter the decision of the court *(Lee Bank*agt. *Kitching,*11 *Abb.,*435; *Cahill*agt. *Palmer,*17 *Abb.,*96; *Fahrcoth*agt. *Laumt,*3 *Sandf.,*743).

The business in which the defendants were engaged was a lawful business, and communications made by them in good faith to their subscribers are held to be privileged communications *(Ormsby*agt. *Douglass,*37 *N. Y.,*477).

The matter set forth in the complaint as libelous, consisted óf a communication by the defendants to another mercantile agency, with which the defendants allege they had a contract, by which each was to supply the other any information that either might need, or. that might be of use to either in their respective business, and to enable them to carry out their own and their respective contracts with their subscribers.

Without determining definitely whether such communications are, within the rule laid down in *Ormsby*agt. *Douglass*(37 N. *Y.,*477), privileged communications, I think that the defendants are entitled to allege in their answer the circumstances under which the alleged libelous matter,was published, for the purpose of showing the nature and character of the publication; and that in that view it cannot be' said *125that the matter contained in the allegation sought to be stricken out, have no bearing upon the question in dispute, or that they do not affect the subject in controversy.

In this view, the portion of the answer objected to cannot, therefore, be said to be irrelevant or redundant *(Cases, supra).*

Again, under the provisions of section 165 of the Code, a defendant is entitled to allege in his answer both the truth of the matter, charged, as defamatory, and any mitigating circumstances. ,

The portion of the answer complained of is alleged, both by way of justification and mitigation. If not good ás a justification it certainly contains matter proper to be taken into consideration in mitigation *(Bush*agt. Prosser, 11 *N. Y.,*347; *Bribey*agt. *Shaw,*12 *N. Y.,*67).

And, if proper to be pleaded for any purpose, the matters contained in the allegation cannot be considered as irrelevant or redundant.

I am, therefore, in favor of affirming the order of the special term, with costs.

Davis, P. J., and Daniels, J., concurred.