The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-09-03

ninth defence the said answer the defendants have
moro definite and certain in tho following particulars
w.t. that they set out What regular agents giving tnsM
OF free admission 70 the persons mentioned or intended
80 70 be In said ninth separate defence in the SAID
nished the said free admissions and also thai the de-
tends what stockholders and subscribers Of
s.ss Ssm a
and each Of thom who complained and the times they
complained to the doendants a. alleged In tho ninth
separate Defence in the said answer Of the defeudan
In folio 70 Of said answer and that tho said defendants
unless Withdrawing the same aforesaid make the said
certain the said particulars and that defendants make
such election and take such action within ten days from
service Of this order and tass they serve notice Of suco
'' "a copyl R. D. Lr,sosros Clerk
NOTION or APPEAL.
new YoRg sUPERioR OoURr.
Mas Aaretssk ssainx Wiliam 0auidwe1 and Horace
smTsEc notice that the plaintiff appeals 10 tho Gen.
ersi Term Of this Court from the following portions Of
tho order made at Special Term, the soth April 1884
by the Hon. A. Robertson Chief Justc,, to wit thai
part Of said order which overrulcs the demures OF the
plaintiff 10 the second and third defeaees answers OF
the defendants, and also that part OF said order
and certain parts Of the fourth, nfth, sixth, ssv-
euth aud eighth defences OF tho answer OF the DO.
1sndshts - set o.: 10 The motto. q motion =. Special
motion TO strike out az irrelevant and redundant the
sixth and seventh and part Of eighth defences and any
motion before the Special Term. Yours, &c.,
JUDAH q DICKINSON, Attorneys for Plaintiff
Tpps" S Of Superior cos
Dated May 49, 1854.
THE POINTS IN DISPUTE BEFORE JUSTICE ROBINSON
THE DECISION OF THE COURT.
NEW YORK SUPERIOR couRr-sPEcAL TERN, APRIL, 1884.
son. Justice The first statement in the de-
fence not demurrabe because merely takes issue on
allegations the sec Se1 s%4n VS.
rial the only remedy for any prejudice arising there
from to the plaintiff If they stood alone, would be TO
move for Judgment aud II they seriously encountered
the record TO strike them out under section 100 Of the
Code whether he would be successful in the latter mo-
tion may be doubted king va Utica lns Co., How
The only question under tho demurrer to the second
aud third deences whether the charges in the defama
tory publication complained of are specific that an
averment Of their truth is sufficient as against de-
Averments, in an answer Of specific facts are
dishonesty and the like (Anon s How p Rep 400,
Fry VS. Bennett Sandf R., g. But the charge in the
publications in question Of the untness of the panta
exhibitions for the resort of respectable persons,
companed by specific charges OF Of persons OF speced
immoral and illegal pursuits and occupations BY the
plaintiffs permission and encouragement which is sui
Gent to make similar avermeHts in defence good
pleading as against demurrer Van Wyck vs. Guthrie,
wyck vs.. Aspinwail) If the paintir wishes further
information, the Code (section 1907 furnishes ample
remedy for any defect in the dsniteness and certainty
The MOTION ALSO to strike the SIXTH seventh and
ninth defences redundant irrelevant must be de-
MED as they allege NATTER and not verbose
repettious in their statement as to subject them to
that objection.
fourth fifth sixth seventh and eighth defences raises
the question how far mitigating circumstances set up in
an answer in action for libel in connection with
defence Of the truth Of the publication under the Code
section 1861 constitute partial defence to the action SO
TO require 70 be pleaded If allegations OF mitigating
Oipr vvn-fnn in cWn n
not como within the 160h section Of the Code. which
only requires pleading to be made definite and certain,
where The precise Of the defence is not apparent
In the case OF Newman Otto ct al, in this court
"a Sandf 8. g. Rep, 669), 1t was held by Judge Duer
that such alterations opeated as mere nctce ana were
struck out frivolous.
In Graham Va. Stone 9 How, P. Rep, 10, and Brown
Justices johnson and hold separately aad respect
lively that facts could be set up in answer in m
CATION OF damages except whom accompanied by an
averment of the truth of the charge The doctrine
laid down seems have been disapproved Of by JUS
Of Appeals. bush vs. Prosscr, IL Y R, a47) The
question OF It's soundness however, did not fairly arise
nor its reputation involved in or necessary to
the decision Of that case. The sole question in 1t
was whether evidence offered on the trial, of bad
conduct the part Of the plaintiff, similar to that
of which the defendant accused him. was admissible
There was justification Of the truth Of the charge in
the case and although the defendant had set out in h
answer the facts Of which he offered the evidence the
trial il was not necessary hold that they must be
pleaded in order TO warrant its admission No objection
could have arisen on that score for whether those allie
cations were o notice or formed pleading the
evidence equally admissible under either theory.
Justice Allen seems to have assumed unquestonable
that anything given in evidence TO reduce damages
either in an action of tort contract, was defence
within tho meaning Of the Code, 1907 which allows as
many defences to be set the defendant may have
He notice Of any distinction in that respect be-
tween torts and contracts so admirably pointed out
by Judge Duer, in Newman vs.. Otto ubi sup, ! which
is that partial defence In an action on contract
necessarily reduces the damages, debt, claimed
while in for tort tue effect Of mitigating crcumstan.
oes is uncertain The jury may give the same damages
proved to have occurred not The same cause Of
ton remans whether the damages arising from II are
aggravated mitigated In the former case no issue
could taken the matter Of aggravation Steph
Plead, 23); the reason Is equally good why It should
not be on matters in dminution Hence while partial
defences In an action a contract must be pleaded
(McKyming Ball. 10 New York Rep, 207; Houghton
vs. Townsend, How Rep, al Gleason VS.. Moore, 2
whole current authorities against tho right duty
to up circumstances in mitigation unless in action
jUs,iSed '- tRpsanshal Code n ST. 2ss scheden
VS. schultz, Sandf s. c. R., 664; salters Kip,
Duer Rep ese; s G. - How Rep, S43 Abb. P. Rep,
$685. Gilbert Rounds, IL How. K 40: Travis Ba
rer "a Barb r., 64) II such circumstances constituted
the whole answer no Judgment within the meaning Of
the Code could be given on an issue formed by reply
because could not be the final determination OF the
rights OF the parties s 25 without assessment Of
damages and there nothing In the Code To- indicate
that designed deprive the defendant Of the for
merly existing right Of reducing the damages
sessmcnt by evidence in mitigation The very section
|
stances Notwithstanding the publication Is justified and
there Is a failure 10 establish such justification.
panies the permission 10 defendant TO avail himself
that provision by requiring the circumstances to be
In the with the Justification but only In reduction
Of damages II the trainers Of the Code had considered
circumstances In mitigation TO be defence and O.
answer TO of action within the meaning Of the
one hundred and eth section, there would have beer
necessity TO require defendant TO set up such
cumstances but simply to have said that setting them
defence with justification should not deprive the
defendant Of the right Of proving them whatever be-
Of tho justification But the one hundred and
sixty nth section contains two PROVISIONS FIRST for al
leging such circumstances In the along with
defence Of truth and secondly, Of allowing evidence
| them when alleged, Notwithstanding such defence
The injustice Of the former rule as to allowing natter
In mitigation before sherrs jury u not 30 apparent a
favor such Interpretation. am compelled there
FORE 70 follow Judge Duers opinion already alluded 10
sustained It Is by s own reasons and the opinion o
Justices johnson and Harris already referred 70 Graham
va stone and Brown Harris in place Of the views
Justices Allen and Selden in the also before refers
to bush VS. Prosser which they were not necessary
the decision Of tho case may be excused looking
upon o. o6iter dictd Tho motion 70 make definite