Ayres v. Covill

By the Court, Hand, P. J. The learned judge who decided this case at special term, gave it very full consideration. He held that matter in mitigation could be pleaded in an action for slander, only when the defendant alleged the truth of the matter charged, as defamatory. (Code, § 165.) I have no doubt this was correct. This part of the answer was unnecessary; as without it, evidence of the general character of the plaintiff was admissible, to reduce the damages. The suit is for an injury to the character of a plaintiff, and if that is bad, he has sustained less damage. (Root v. King, 7 Cowen, 634; S. C., 4 Wend. 114. Hamer v. McFarlin, 4 Denio, 509.) But as the right to plead matter in mitigation, in slander, depends upon the code, when pleaded, it must be in the mode there prescribed; and there is no plea of justification in this case. (Cases cited, Voorhies' Code, § 165, Van Santvoord’s Pl. 267.) The learned judge considered the complaint defective in substance, because it was not alleged that the examination of S. G. was taken by the justice upon any complaint made or pending before him, against S. Gr. or any other person; nor did the occasion or purpose, or whether it was a civil or criminal proceeding, appear; nor that Torry had jurisdiction; and that this objection was not obviated by the new rule of pleading a judgment or determination of an officer of special jurisdiction. (Code, §161.) His decision on this point, too, is good law. The statute makes it criminal to steal and carry away any record, paper or proceeding of a court of justice, filed and deposited with any clerk or officer of such court; or any paper, document or record, filed and deposited in any public office, or with any judicial officer ; without reference to the value of the record, paper, or document, or proceeding so stolen. (2 R. S. 680, § 69.) It makes the value of the paper, &c., of no importance; but under the first clause of the section it must be a record, paper or proceeding of a court. And if the justice had no jurisdiction, he did not act as a court, nor is it averred that he did so. And if this examination or writing was wholly unauthorized and void, and no use had been, or could ever be made of it, for any purpose, in legal proceedings or as a private instrument, it could not prop [264] erly be filed and deposited in any public office, or with any judicial officer. Some other questions might perhaps be made upon the sufficiency of this complaint, but this defect renders it obnoxious to a demurrer ; and as it does not state facts sufficient to constitute a cause of action, the defendant can take advantage of it now. But it is contended that the averments in the third part or division of the answer supply these deficiencies of the complaint. And the judge at special term so decided; feeling bound by the remarks of Mr. Justice Spencer, in delivering the opinion of the court in Vaughan v. Havens, (8 John. 110,) and by the case of Drake v. Corderoy, (Cro. Car. 288,) there cited., But in Vaughan v. Havens the question did not in fact arise ; for there was no plea but the general issue, and the court held the defendant might use the notice of justification accompanying it or not, as he should be advised. In Drake v. Corderoy, the defendant justified, and in so doing supplied the omission of a material averment in the declaration; and the court correctly held that cured the defect. But here, the demurrer is to one plea or answer, and the admission or averment is found in another. Such an admission will not avail the plaintiff on this demurrer. (Robins v. Lord Maidstone, 4 Q. B. Rep. 811. Harrington v. McMorris, 5 Taunt. 228. Smith v. Martin, 9 M. & W. 304. Edmund v. Groves, 2 Id. 642. Firmin v. Crucifix, 5 C. & P. 97. Montgomery v. Richardson, Id. 247. Troy and Rutland R, Co. v. Kerr, 17 Barb. 581.) The admission made in the course of a pleading is not an admission for all the purposes of the cause; but, as Lord Denman stated in Robins v. Maidstone, correcting what he had said in Bingham v. Stanley, (2 Q. B. Rep. 127,) is an admission “ for all purposes regarding the issue arising from that pleading.” The plaintiff has taken issue upon this third answer, (see Code, § 168,) and he may give evidence also of matter in avoidance thereof. (Id.) And any admission therein may be considered an admission in that line of defense or pleading. But that plea or answer is not before the court on this demurrer. This answer does not contain a counterclaim, nor is it a inere [265] denial. But we sustained a demurrer in such a case last term, in the case of Smith v. The Franklin Fire Insurance Company. I had some doubts, at first, whether the plaintiff should demur to matter in mitigation. But it is not pleaded in form as such, but rather in bar. (Fry v. Bennett, 5 Sandf. R. 75.) And besides, the plaintiff cannot make this objection. [Clinton General Term, July 3, 1854. The judgment must be reversed; but, under the circumstances, both parties should have leave to amend, with costs to abide the event of the suit. Ordered accordingly. Hand, Cady, C. L. Allen and James, Justices.]