Opinion
February Term, 1896.
John Van Voorhis Sons, for the appellant.
Jacob Spahn, for the respondent.
This is an action brought to recover damages for libel alleged to have been published by the defendant, appellant, herein, the alleged libel being, in effect, that the plaintiff had been indicted upon the charge of intimidating witnesses. The answer of the defendant first denied each and every allegation of the complaint, and for a second and separate answer and defense the defendant "repeats the denial hereinbefore contained," and further alleged a justification of the alleged libel. A third answer by way of mitigation first repeated all of the denials before contained.
It appears uncontradicted from the motion papers that the plaintiff noticed a motion for the twenty-sixth of August at the Monroe Special Term to strike out the denials contained in the second and third answers. Defendant appeared and objected to the motion for the reason that no grounds of motion were stated in the notice of motion. The motion was thereupon submitted to the court and the court took the papers. This motion is still pending undetermined, without permission to make a new motion for the same relief. Subsequently, the plaintiff noticed this motion for the 30th of September, 1895, before the same Special Term, for the same relief demanded in the former notice of motion, and further stated in the notice that the plaintiff thereby withdrew the former motion noticed for August twenty-sixth, on the ground that by inadvertence the plaintiff omitted to state the grounds upon which the said motion was made, and stating as a ground of this latter motion that the plea of a general denial mingled with a plea in mitigation or justification is unauthorized by the Code or the practice of the court in actions for libel. The Special Term granted this latter motion and made an order striking out the denials in the said answers, and from that order the appeal herein is taken.
The learned counsel for the appellant presents a single point that the court should not have entertained and disposed of this motion while the other motion for the same purpose was pending in the same court undetermined.
The plaintiff could not countermand or withdraw the former motion without payment of costs, or without the consent of the court, neither of which had occurred. We see no escape from this contention. The practice adopted by the plaintiff cannot be sanctioned. But for the pendency of this former motion, the court may have been justified in striking out these denials. It is unnecessary to pass upon that question. The objection urged is fatal, and the order should be reversed, with ten dollars costs and disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements, without prejudice to the right of plaintiff to make a new motion upon discontinuing the motion noticed for the August Special Term.