The New York herald., 1874-12-25
The Kelly-Waterbury Libel Suit-MotiOn to
Strike Ont Portions Of Answer.
The City Marshals Controversy Important De-
cisiOn in the Case.
FISKy PRONISSORY NOTES TO MISS MANSFIELD.
The Cancap in COurt-Convic-
ton in the Scurrilous Postal
Card Case-Italian
Brigandage.

Manuel Posada, Juan Cortes and Francisco Mar
tinez who had been charged with selling cigars
without being properly stamped were held yester-
day by Commissioner Shields, to await the action
OF the Grand Jury.
THE KELLY Y-WATERBURY LIBEL CASE.
The motion TO strike out portions OF the answer,
which has been postponed for several days, came
up yesterday Tor argument before Judge Donohue
IN Supreme Court, Chambers. MT. Henry l.. Cln-
ton and Colonel George W. Wingate appeared for
the plaintiff, and exJudge John X. Porter was as
sociated with Mr.. Waterbury IN the defence.
Colonel Wingate commenced the argument in
favor OF the motion. He argued that the defendant
In his answer had neither admitted nor denied GER
tam allegations In the complaint but by alleging
"tbat he was unable to state'' in regard
TO them, rendered 1t impossible for the
Court to know what the issues IN the case were,
and that this portion OF the answer was In
violation OF the code and should be stricken out
and specific admission or denial OF the complaint
required to be made; thaJ the assertion In the
answer that the plaintiff "was not properly q
member OF the Democratic state Convention
to whom the telegram claimed to be hbellous
was sent by the defendant, was entirely inmate
rial, and would, II allowed to remain, require the
the democratic primary meetings; that the let
ters which had been annexed TO the answer had
nothing to do with the case; that the defendant
had endeavored to bring them in under the pre-
tence OF admitting an incidental reference to the
complaint, and then annexing the letters, and
having In this way improperly brought them INTO
his answer, had proceeded to set forth in detail
every matter contained in them, thereby bringing
into the case large number OF matters which
were not alleged il the complaint and mad moth
Ing 10 do with the action. Many OF such allega-
tlons he CLAIMED to be scandalous, particularly
such as referred to the plaintiffs having been
elected in 1864 by fraud and being reported to be
extremely pious." Tne defence tnat the telegram
ana the Original letter OF Havemeyer were writ
reappointed a member or the Democratic State
Central Committee and thereby inJure the pros
poets OF It's candidates. and that the plaintiff as
chairman OF the Committee on Organization OF
Tammany Han, mad usurped the power OF making
nominations, ne contended had nothing TO do with
the question IN the case, winch was simply
whether or not the plalntlff while Sheriff. had or
had not rauduenty received moneys from the
county. He further insisted ,hat the Court would
not, upon the trial, 60 into any question of the
power with which Tamfnany Hall chose to invest
The plaintid. ana tina that neither Aavemeyer nor the
ss' shat II they had 1has fact @ lormed i Ano NO
world al large as nad been done; tnat the various
letters which were annexed 10 the answer and
evidence which could only be presented on the
tlia and not lacts which required to be incorp0-
rated IN the answer, and, therefore, should be
stricken out; anu that the answer was detective
IN alleging these matters as q defence and not in
mitigation OF damages, which is required under all
the DECISIONS, II they were to be relied upon in
mitigation, and that, therefore, objection could
not be made to this motion under the plea that
they formed matters in mitigation.
Mr.. Waterbury said that the defence conceded
the right OF the plaintiff TO put IN an answer IN ac
a
lendant being called ON TO answer complaint had
certainly right TO take his own position in re-
garu to the various allegations oil the complaint.
He chose 70 come into court and allege
that he was prominent memper OF the Syra-
to meet 1t and IN his own way. 1t had nothing
TO do with the real merits OF the case 1t was not
necessary to aiege IT.. Has the defendant right
to RAISE an Issue whether he was prominent
member OF this convention2 Suppose minister
should sue in regard to a libel published against
him and DIS matter OF lnducemen. ne alleged that
he was minister OF the Gospel That. OF course.
would naturally increase the damages because
II the matter was hbelous the INJURY would be
greater TO Il minister OF the Gospel than to an
ordinary ildivldua4 Ii that issue was raised
would not the defendant have right to show
he OBTAINED that position Improperly II he coulds
The defendant he invited TO meet in
his own way The issue raised. In regard to
1.-THE defendant also admits that by the words
Havemeyer's exposition OF Key's irauds' con.
iained 10 sucn teiegram' ne meant Ine ietter, ana
Way OF lnnuendO, but the allegation was distinct.
1t was also asked TO strike out the letter made
part OF the answer, and when 1t Is claimed the
defendant published in the newspapers, directed TO
Kelly aud containing false and hbellOus matter.
At the trial 1t would be proper to go on and prove
every statement set forth In the letter. The let
ter was not irrelevant but related to the subject
matter OF the controversy, and was material ana
proper In mitigation OF damages. II all was
stricken out that was desired the answer would
be completely denuded Of everything In the way
OF justification, and II the motion was granted it
would cut him absolutely from his whole defence.
= The iurher argument on the motion was deferred
till te O'Clock A. NJ. next Tuesday.