(79 Hun, 18.)

#### FEELY v. JONES.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Libel—Pleading—Justification.

In an action for libel, the complaint set out a newspaper article, stating that claims “which are as ingenious as they are exorbitant” had been filed against a decedent’s estate; that plaintiff was claimants’ attorney, “and nobly has he risen to meet their demands upon his talent;” and that plaintiff endeavored to have a friend appointed as administrator. The article then enumerated the claims, and stated that, “owing to the inspiring power of a lawyer,” the mind of a certain claimant gripped a large variety of details. *Held,*that an answer stating the amounts of claims presented against such estate and the amounts allowed (less than half in most cases) did not comply with the rule that an answer, to-amount to a justification, must be as broad as the charges in the complaint.

Appeal from circuit court, Monroe county.

Action by Dennis C. Feely against Gilbert E. Jones, as treasurer of the New York Times. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Affirmed.

Argued before DWIGHT, Pi J., and LEWIS and HAIGHT, JJ„

Henry Yonge, for appellant.

John Van Voorhis, for respondent.

LEWIS, J.

This is an action of libel brought against the defendant for publishing an article charging the defendant, who is a lawyer, with dishonesty in his profession. The plaintiff was at the time of the publication of the article the nominee for the office-of attorney general of the state upon the Henry George ticket. A copy of the article was set out in the complaint. It was headed: “A Specimen George Man. Engaged in Eating Hp a Widow’s Estate. A Leaf from the Professional Record of the George Party’s Candidate for Attorney General.” The article is dated Rochester, October 19th. It proceeds to state that “the candidate of the George party for attorney general is D. C. Feely, a lawyer of this-city,” and that “a case is now pending before the surrogate of Monroe county, in which Mr. Feely figures in a role not altogether new to the legal profession, but one which invites criticism and contempt. As attorney and claimant, he, some time ago, set about eating up a widow’s estate. He has not concluded his meal, but that is more the fault of the authorities who have interrupted its *447progress.” It further stated: That a widow by the name of Anna Kane had died in the city, leaving a small estate, of about $6,000, and that “it seems to have occurred to kind neighbors that the proper disposal of his estate demanded its distribution among themselves. At all events, plans were laid to seize it, and, in their perfection, Mr. Feely has played an eager lawyer’s part. A number of creditors have filed claims against it, which are as ingenious as they are exorbitant. Mr. Feely is their attorney, and nobly has he risen to meet their demands upon his talent.” That “the sum total of the claims is nearly $5,000, or almost the amount of the widow’s savings. The nature of the claims suggests the extreme difficulty often encountered by lawyers in drafting bills of particulars in delicate cases.” That “Counsel Feely early sought to have an administrator of this estate—a friend of his—appointed. In this he was disappointed, for the surrogate selected the county treasurer, Alexander McVean; and upon him, as administrator, has fallen the examination of these so-called ‘claims.’” That “first upon the roll of creditors is- D. C. Feely, who, for legal services rendered from June, 1880, *to*May, 1886; wants the sum of $500. He does not specify the nature of his services, otherwise than ‘legal.’ ” And then follow statements as to the particulars of other claims presented by other claimants, and states: “Client No. 2 is Mary A. Kane, for whom Mr. Feely asks the sum of $1,268.16. Her bill is longer than that of Barnstable, and is brim full of particulars. Her memory carries her back no further than the law of limitation allows. For instance, in November, 1880, she paid for cloth for two night dresses for the deceased the sxim of $1.25, and for making the same $1. Her mind, presumably owing to the inspiring power of her lawyer, grips a large variety of details for the bill of 1881, as a feminine mind naturally would, under the pressure of circumstances. The administrator, after some investigation, has practically decided that the claims are fishy, and that Mr. Feely, if he is not ridiculed out of court by that timé, can go before a referee, and take his chances of establishing these claims by testimony, and that in the meanwhile the widow’s savings will remain in good hands, and the rights of the heirs will be respected, and properly protected.” The complaint alleges that the defendant intended thereby to charge the plaintiff with misconduct and fraud in the practice of his said profession, with being dishonest, and with distributing to himself and others property that did not belong to him or them, and with filing claims against the estate of Anna Kane which were fictitious and fraudulent, and manufacturing such claims, and in attempting to get a friend of his appointed as administrator of that estate improperly; intending thereby to charge the plaintiff with breach of trust, extortion, and larceny. The first count of defendant’s answer denies the allegations of the complaint, except that the plaintiff was an attorney, and had practiced law in Rochester. For a second defense the answer alleges that the plaintiff was a candidate of the George party for attorney general; and that one Anna Kane, a widow, died intestate at Rochester, leaving an estate amounting in all to about $6,000, and that *448the plaintiff, as attorney for Mary A. Kane, an alleged creditor of the deceased, applied to the surrogate of Monroe county for letters of administration upon the estate of the deceased; that his application was refused, and the surrogate appointed the county treasurer; and that, thereafter, the following claims were presented against the estate, viz.: Mary Ann Kane, for $1,268.16; Patrick J. Cumings, for $989.16; Mary Laddy (or Leddy), for $800; Elizabeth Bostable (or Barnstable), for $520; and D. C. Feely, for $500. And .then follow detailed statements of the items of the accounts. The answer further alleges: That said claims were exorbitant and unjust, and that the administrator rejected all of them. That they were thereupon referred, pursuant to statute, except the claim of Elizabeth Bostable, which was withdrawn. That all of the claims dated back to 1880,—six years prior to the death of the deceased,—and that there was no record that any of the claims were presented to the deceased prior to her death, and that, if said claims had been allowed, they would have eaten up the greater part of the estate. And that said claims, except that of Elizabeth Bostable (or Barnstable),-were finally allowed in part, as follows: Mary A. Kane, $866.16; Patrick J. Cumings, $250; Mary Leddy (or Laddy), $488; and Dennis C. Feely, $355. That the deceased was buried by an undertaker in Bochester, who gave the deceased a funeral, the grandeur of which was inconsistent with the position that the deceased had occupied during life, and charged her estate therefor $357.22. The third count of the answer consisted of a-repetition of the denials and allegations contained in the second count, which are pleaded as a partial defense, and in mitigation of damages.

The trial court held that the answer was not sufficiently broad to amount to a justification, but that the facts alleged were proper to be proved in mitigation of damages. An answer, to amount to a justification, must be as broad as the charges in the complaint. This answer manifestly did not come up to this rule. Notably, it failed to justify the charge that the plaintiff conspired with others, as an attorney, in preparing and presenting fraudulent claims against the estate. Every allegation of the answer might be true, and yet the plaintiff have been entirely innocent of any misconduct, so far as his relations to the claims presented on behalf of his clients. The answer does allege that the claims were exorbitant and unjust, but it nowhere alleges that the plaintiff had any knowledge or information which should have led him to suppose that they were improper claims. Again, the answer failed to justify the charge that the plaintiff sought to have a friend appointed administrator of the estate. There was an imputation in the article, in that regard, that the plaintiff sought to procure the appointment of a friend as administrator, with a view of thereby promoting the allowance of the claims. There was nothing in the answer nor in the evidence which tended to sustain this imputation. It is the contention of the defendant that the accounts themselves furnished intrinsic evidence that they were fraudulent. There is no allegation in the answer to that effect, and we fail to find *449such evidence upon the face of the accounts. Neither was there anything in the disparity between the amount of the claims presented and the amounts allowed by the referee which necessarily tended to show that they were fraudulently made. The claimant Mary Ann Kane presented a claim for $1,268.16, and was allowed $866.16. Mary Leddy presented a claim of $800, and was allowed $488. The plaintiff presented an account for $500, and was allowed $355. Patrick J. Cumings presented an account for $989.16, and was allowed only $250. While the disparity between Cumings’ claim, as presented, and the amount allowed by the referee, might be some evidence of its fraudulent character, the plaintiff is not charged with having acted as Cumings’ attorney, or with having had anything to do with him or his claim. To constitute a justification in an action for libel, the answer must aver the truth of the defamatory matter charged. It is not sufficient to set up facts which only tend to establish the truth of such matter. Without any averment of its truth, the facts detailed can only avail in mitigation of damages. Thrall v. Smiley, 9 Cal. 529; Newall, Defam. 660, 661; Wachter v. Quenzer, 29 N. Y. 547-551. The trial court, we think, properly held that the allegations in the answer did not constitute a justification. We find nothing in the exceptions of the defendant calling for a new trial. The judgment and order appealed, from should be affirmed. All concur.