#### Mary Tully, Respondent, *v.*The New York Times Company, Appellant.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Libel and slander — rule as to justification — pleading — demurrer.

The rule is, that a justification must be as broad as the libel, but not that it must be as broad as all the immaterial and irrelevant facts alleged in the libel.

Where, in an action for a newspaper libel consisting in the statement that plaintiff, in certain court proceedings, swore that her father was dead, while the father appearing in court stated that plaintiff *“*knew throughout the proceedings that he was living,” a defense of justification does not rest solely on allegations as to what actually transpired in court, but alleges other facts including an alleged letter written by plaintiff at or about the time of her verifying a petition for letters of administration upon the estate of her deceased brother, showing actual knowledge at that time that her father was living, is sufficient; and an order sustaining a demurrer thereto will be reversed and the demurrer overruled.

*166Appeal by the defendant from an interlocutory judgment of the City Court of the city of New York sustaining a demurrer to the first and second defenses in the answer.

Leventritt, Cook & Nathan (Alfred A. Cook, of counsel), for appellant.

William F. Unger, for respondent.

Guy, J.

Paintiff sues to recover damages for libel consisting in the publication of the following article in defendant’s daily newspaper: “ Ghost halts a $50,000 suit. But John Tully proves to be a reality after all to his daughters. A suit for $50,000 against the City of New York was put on trial yesterday before Justice Dugro and a jury in the Supreme Court. The plaintiffs in the case were three sisters of the dead man, Catherine, Mary and Julia Tully. In order to bring the suit they had sworn that their parents were dead and took letters of administration on their brother’s estate. A rough pavement pitched Tully off a truck and killed him. Catherine was on the stand when the policeman attached to the Corporation Counsel’s office brought a man into the Court room. As soon as the witness saw him she began to scream. In a moment the two other sisters were also screaming. The man the Corporation Counsel had brought into court was John Tully, the father of the three girls. As soon as they recovered from their hysteria they explained that they had not seen him for nine years, and thought he was dead. They added that they screamed because they thought a ghost had come to court. Tully insisted that, though he had been separated from his.family, the girls knew throughout the proceedings that he was alive and where he could be found. Justice Dugro suspended the trial and will make inquiry into the circumstances of the case today.”

The first separate defense is justification; the second privilege.

It is alleged in the first defense that on April 15, 1911, letters of administration on the estate of the deceased brother of the plaintiff were granted to his mother; that she, as his *167administratrix, brought an action to recover damages for his death; that on October 6, 1911, she died, and plaintiff was appointed administratrix *de bonis non*of her brother’s estate on November 3, 1911, and continued the action brought by her mother. The plaintiff, in order to obtain said letters of administration *de bonis non,*alleged in her petition as follows : “And your petitioner has been informed and believes that the deceased left him surviving said Julia A. Tully, his mother, who has since died as above stated; Ellen Reilly, his sister; your petitioner, Mary A. Tully; John Tully, a brother; Eugene Tully, a brother; Joseph Tully, a brother; and Catherine Tully, a sister, *as his only next of kin."*

Plaintiff demurred to this defense as insufficient in law, and the demurrer was sustained. Her contentions are: Eirst, that a defense of justification must admit the publication, and that nowhere in said first separate defense is such admission to be found. Under section 522 of the Code each material allegation of the complaint not controverted by the answer is to be taken as true. It is elementary that each separate defense is to be tested alone and, therefore, by not denying, it admits publication.

Plaintiff’s second objection to the defense is that the justification is not as broad as the libel inasmuch as the alleged libel charges plaintiff with having sworn, in substance, that her father was dead, and the facts pleaded in justification shows that she made such oath only on information and belief. The rule, however, is that the justification must be as broad as the libel, not' that it must be as broad as all the immaterial and irrelevant facts alleged in the libel.

The alleged libel consists in the statement that plaintiff swore that her father was dead, while the father, appearing in court, stated that the plaintiff “ knew throughout the proceedings that he ivas living.” If she knew that he was living, it is quite immaterial whether she swore unqualifiedly that he ivas dead or swore to the same fact on information and belief. Bennett v. Leeds Mfg. Co., 110 N. Y. 150.

The defense of justification, however, does not rest solely upon the allegations set forth in the first defense as to what actually transpired in court, but alleges other facts, includ*168ing an. alleged letter written by plaintiff at or about the time of swearing to the petition in question, showing actual knowledge at that time that her father was living. We think, therefore, that the defense of justification as alleged is sufficient.

For the same reasons, the defense of privilege, as set forth in the second separate defense, is sufficient.

The interlocutory judgment sustaining the demurrer must be reversed with costs, and the demurrer overruled with costs.

Bijtjr, J., concurs; Seabury, J., concurs in result.

Interlocutory judgment reversed, with costs.