Battell v. Wallace

Brown, J. Without questioning the general principle invoked by the plaintiff that a libel upon the plaintiff cannot be justified by a previous wholly independent libel upon the defendant, and that the latter cannot even be given in evidence in mitigation of damages where any considerable interval has elapsed, I am not satisfied that the matter sought to bo stricken out from the answer upon this motion is so independent of the libelous matter complained of and set forth in the complaint as to justify me in striking it out, or in holding that it could not possibly bo given in evidence upon the trial. The complaint alleges that the defendant published, among other libelous matter, the following: “The wretched idiot [meaning the plaintiff] set about to injure us [meaning defendant] by trying to cast doubt upon some of the early pedigrees as they appeared in the register, [meaning defendant’s said book of pedigrees of horses,]” etc. The eleventh paragraph of the answer sought to be stricken out purports to be a statement in detail of the instances in which, as the defendant alleges, the plaintiff did, as the alleged libelous matter asserts, seek to cast doubts on the earlier pedigrees set forth in the defendant’s register. In effect, it would seem to be an averment of the truth of the alleged libelous matter, setting forth thé specific instances referred to in the general assertion. Under the Code this is proper to be pleaded either in justification or in mitigation of damages. Code Civil Proc. §§ 535, 536; Hatfield v. Lasher, 81 N. Y. 250; Gould v. Weed, 12 Wend. 12; Willover v. Hill, 72 N. Y. 36; Fink v. Justh, 14 Abb. Pr. (N. S.) 107; Corning v. Corning, 6 N. Y. 103; Jeffras v. McKillop & S. Co., 2 Hun, 351. Motion denied.