Mathews v. Beach

Action commenced in July, 1850, in the Superior Court of the city of New York, for a libel, alleged to have been published by the defendants of and concerning the plaintiff. The defendants in their answer denied [43] the publication of the libel, and then stated as follows: “And they aver that they published an article in the words set forth in the complaint, in good faith,” &c., setting forth matter in justification. The plaintiff “demurs to the said answer for insufficiency, and states as the grounds of his demurrer that all the averments in said answer contained, from the words ‘and they aver that they published an article ’ to the end of said answer, are insufficient as a justification in defence of said libel.” The Superior Court sustained the demurrer, and the cause was brought to trial before a jury, when the judge decided that the publication of the alleged libel was admitted by the pleadings. The defendant’s counsel excepted, and the plaintiff had judgment. The Court of Appeals reversed the judgment, on the ground that the demurrer, notwithstanding its commencement as a demurrer to the whole answer, was in effect limited by the subsequent clauses to the special justification attempted to be made by the answer, and that the Superior Court, in passing upon the demurrer, must have so held, or the demurrer could not have been sustained. That the general denial of the publication of the libel therefore remained, and the admission of its publication, contained in the part demurred to, must be regarded as stricken out by the allowance of the demurrer. Other exceptions in the case, relating to the measure of damages, were not passed upon. (S. C., 8 N. Y. 173.)