Kelly v. Taintor

Monell, C.J. — A defendant in an action for libel may •allege the truth of the publication, or that it was privileged. These are defenses. • .. The defendant claims that both are raised by his answer. First, that, under the facts stated, the communication was privileged ; and, second, that the alleged libelous matter was true, “ according to the true intent and meaning thereof.” I do not find that the facts stated in the “ sixth ” subdivision of the answer brings the alleged libelous matter within any of the classes of privileged communications. It does not relate to any legislative or judicial proceeding; nor is it.a private communication which may sometimes be published under some peculiar duty or privilege of confidence. In respect to legislative or judicial proceedings, it is provided by statute that a fair and true report shall not subject the reporter to an action. But in that case, and in all cases of a privileged communication, if express malice is shown, the action will lie. The matter alleged by the defendant did not relate to any public proceeding. The charges were that the plaintiff had been implicated in certain frauds by which the city of Hew York had been defrauded of large sums of money, through or by which frauds the plaintiff had obtained portions of such sums. It is not alleged that any criminal proceeding, or civil action, had been commenced against the plaintiff in respect to such alleged frauds, nor that in any way it had been made the subject of any judicial, legislative or other public or private investigation. The. charge, therefore, must be presumed to have emanated directly from the defendant, and he must be held responsible, unless he can justify its publication by establishing its truth. He cannot claim that it was privileged. The matter stated, however, if it fails to justify the libel, might be given in evidence to mitigate the damages, if it had been pleaded for such a purpose. In Fink agt. Justh (14 Abb. [N. S.], 107), it was held that matter, claimed to go in mitigation of damages, must be [273] alleged separately from matter claimed to be a justification ; and the same rule applies where the same matter is intended to be used for both purposes. The demurrer to the sixth and seventh defenses is well taken. The allegation constituting the eighth defense, I think, is sufficient. The truth of the matters complained of is averred “ according to the true intent and meaning thereof.” That must be, of course, according to their legal signification, intent, and meaning, which is a question of law; and the interpretation cannot be governed or controlled by any hidden or intended meaning of the defendant. Hence the words, “ according to the true intent and meaning thereof,” must be regarded and claiming to give to them nothing more or less than their legal meaning, and might as well have been omitted. But the allegation is, in effect, that in the legal signification of the matter it is true, and the defendant has the right to allege the truth as a defense; the mere surplusage does not render it defective as a pleading. The demurrer to that defense is not well taken. The plaintiff must have judgment upon the demurrer to the sixth and seventh defenses, and the defendant must have judgment upon the demurrer to the eighth defense. The defendant may have leave to amend his answer by sotting up the matter in mitigation of damages.