Dinkelspiel v. New York Evening Journal Publishing Co.

McLaughlin, J. : Action to recover damages for an alleged libel. The article published purported to give an account of the testimony which the plaintiff gave as a witness in an action brought by one Israel for a [98] divorce. , That portion of the article complained of reads as follows : “ Dinkelspiel also admits club expelled him for cheating at cards. * * * Were you expelled from a club in the upper part of this State for cheating at cards ? Yes, sir.” The 1st paragraph of the first defense alleged that the defendant denied each and every allegation of the complaint except the allegation of its incorporation, and that it was the owner and publisher of the paper in which the article appeared. The 2d paragraph set out in extenso the testimony which the plaintiff is alleged to have given as such witness. The 3d paragraph set out the article published, and the 4th alleged that it published the article without malice, and that the publication, as a whole, was a fair and true report of a judicial proceeding. As á separate and partial defense, and in mitigation and reduction , of damages, the defendant, in the 5th paragraph, restated and made a part of its partial defense “ all of the allegations, admissions and denials contained in paragraphs I and II” of the first defense, and in the 6th paragraph of the separate and partial defense it alleged that for several years prior to the time plaintiff was examined as a witness, and gave the testimony referred to, he and one Abraham Israel and his wife Willy B. Israel'were intimate friends; that the husband, for1 the purpose of getting evidence on which he could get a divorce from his wife, induced the plaintiff to accompany her to Blue Mountain Lake, watch her movements and report the same to him, which the plaintiff did. Among other portions of the answer, plaintiff moved to strike out paragraph 1 of the first defense and paragraphs 5 and 6 of the separate and partial defense, upon the ground that the same were irrelevant and redundant. The motion was granted as to paragraphs 1 and 6 and in part as.to paragraph 5, and defendant has appealed. Motions to strike out a part- of a pleading as irrelevant and redundant are not favored by the courts (Hatch v. Matthews, 85 Hun, 522), and will invariably be denied unless the court can see that the moving party is or will be prejudiced by the retention of the part sought to be stricken out, and the granting of the motion will not harm the adverse party. (Stieffel v. Tolhurst, 55 App. Div. 532.) If, under any possible circumstances, evidence of the facts pleaded in the allegations sought to be stricken out have any bearing on the subject99 matter of the litigation, then the motion will be denied. (Bradner v. Faulkner, 93 N. Y. 515.) Keeping these general rules in mind, it needs but a slight consideration to show that the court erred in striking out paragraphs 1 and 6. Paragraph 1, as already indicated, contained a denial of every allegation in the complaint, except that at the time stated the defendant was the owner and publisher of the paper in which the article appeared. There is thus included in this paragraph not only a denial of express malice, but that the publication was of or concerning the plaintiff, as well as that the publication, as alleged, was made at all. The complaint alleged that the article was “ published by the defendant with express malice and with intent to injure the plaintiff.” A denial of this allegation is certainly relevant and especially in a defense of privilege, and for the very obvious reason that if the defendant admitted actual malice by failing to deny it, the defense of privilege would fail. (Oode Oiv. Proc. § 1907.) The allegations contained in paragraph 6 are not redundant, nor do we think they are irrelevant. While it is true such allegations are not directly connected with that portion of the article complained of, they relate to the conduct of the plaintiff by reason of which he became a witness and gave testimony in the action referred to in the article. An action to recover damages for a libel has for its basis that the character of the person libeled has been injured, and for that reason character is a proper subject for the jury to consider, to the end that it may award the proper measure of damages. It is undoubtedly the general rule that a defendant in an action for libel can only attack, in mitigation of damages, the general character of the plaintiff. But this rule is subject to some qualification, and that is, when specific acts of the plaintiff are connected with or involved in the subject-matter of the publication, then an inquiry may be made as to such acts. The facts alleged in the 6th paragraph are that the plaintiff, at the instigation of the husband, spied upon the wife while she was at Blue Mountain Lake, reported her acts and conduct to the husband, and by reason thereof the action for a divorce was instituted. Further facts are alleged to the effect that under the guise of sickness the plaintiff ingratiated himself in the favor of the wife and for that reason was permitted to accompany her to Blue Mountain Lake; that she looked after him and [100] nursed him, and as a result of this intimacy —induced by fraud and deceit on his part — he was enabled to watch her movements. The case of Holmes v. Jones (147 N. Y. 59) is, as it seems to me, in point. There, defendant was sued for libel because it had 'stated that the plaintiff presented an extortionate bill and was intoxicated at the time he performed the services for which the bill was rendered. The complaint sought a recovery on both charges, and the answer justified both. On the first trial the defendant established a justification of the charge of extortion and on the second trial the plaintiff omitted to read to the jury the part of the libelous article which charged extortion, but put in evidence only the part which charged intoxication. Defendant put in evidence the whole article and gave evidence tending to justify the charge of drunkenness, and upon this issue — the only one submitted — a verdict was rendered for the plaintiff for punitive damages. During the trial the defendant offered to prove, in mitigation of damages, •the truth of the alleged libel relating to the subject of extortion, but the evidence was excluded. Held, error which necessitated a reversal of the judgment; that such evidence was competent for the defendant to prove, in mitigation of damages as to that part of the alleged libel charging drunkenness, as-showing that the charge of attempted extortion was true. As to the 5th paragraph we think the court correctly disposed of the motion so far as it related to that. The 5th paragraph was as follows: “ V. That the defendant repeats and makes part of this partial defense all of the allegations, admissions, and denials contained in paragraphs I and II hereof, with the same force and effect as if the same were specifically reiterated and set forth at length herein.” The order appealed from' struck out this paragraph in so far as it reiterated the allegations in paragraph 1 “ with the exception of the denial that the publication Was malicious.” The defendant, by incorporating in this paragraph the general denial contained in the 1st paragraph, prevented the plaintiff from demurring to the separate and partial defense and in no way did such repetition benefit the defendant. If the denials contained in the 1st paragraph were good, they were good for every purpose at the trial and were just as effectual as though repeated in the separate and partial defense. This allegation, therefore, was irrelevant and redundant. The reten [101] tion of it might injure the plaintiff and the striking of it out could not, by any possibility, injure the defendant. (Stieffel v. Tolhurst, supra; State of South Dakota v. Mc Chesney, 87 Hun, 293.) It follows, therefore, that the order appealed from must be modified as herein indicated, and as thus modified affirmed, without costs to either party. Van Brunt, P. J., O’Brien, Ingraham and Laughlin, JJ., concurred. Order modified as directed in opinion, and as modified affirmed, without costs.