Hawk v. American News Co.

BISCHOFF, J. The partial defense to wMch the demurrer is interposed is properly pleaded as such (Code Civ. Proc. § 508), being a statement of matter in mitigation of damages (Id. §§ 535, 536, 3343, subd. 9), since, in an action for libel, facts tending to disprove actual malice, such as do those here pleaded, may be proven in mitigation, inasmuch as a recovery of exemplary damages may be thereby resisted. Bisbey v. Shaw, 12 N. Y. 67, 74; Bush v. Prosser, 11 N. Y. 347; Samuels v. Association, 52 N. Y. 625; Daly v. Byrne, 1 Abb. N. C. 152, note. Demurrer overruled, with costs.