McAvoy v. Press Publishing Co.

Full title: THOMAS F. McAVOY, Respondent, v . PRESS PUBLISHING COMPANY, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 6, 1914

164 App. Div. 355 (N.Y. App. Div. 1914)

149 N.Y.S. 665

Opinion

November, 6, 1914.

Charles B. Brophy, for the appellant.

Henry L. Scheuerman, for the respondent.

LAUGHLIN, J.:

This is an action for libel. The defendant pleaded certain facts under the heading, "For a First Separate and Distinct Defense Herein both Whole and Partial." It therein repeated certain denials of material allegations of the complaint, which rendered it impossible for the plaintiff to test, either by demurrer or by motion for judgment on the pleadings, the sufficiency of the matters pleaded as a complete defense. The learned Special Term was, therefore, right in holding that the denials were improperly incorporated with facts pleaded as a complete defense, and that plaintiff was aggrieved thereby and entitled to have them stricken out, and in ruling that such denials should not be stricken from the partial defense. ( Haffen v. Tribune Association, 126 App. Div. 675.) The motion was to strike out allegations as irrelevant and redundant and to have certain allegations made more definite and certain, and generally for other and further relief. The learned counsel for appellant contends that, since the notice of motion did not demand that the facts pleaded together both as a complete and as a partial defense be separately pleaded, the court was without power to grant that relief. We are of opinion that since, in the form in which the defendant pleaded the facts, the court could not strike out the denials, it was fairly within the general prayer for relief to require, as the court did, the service of an amended pleading setting forth the complete and partial defenses separately and omitting the denials from the complete defense and incorporating them in the partial defense. (See Waltham Mfg. Co. v. Brady, 67 App. Div. 102.)

The appellant further contends that the allegations which have been stricken out were not irrelevant, and that the plaintiff is not aggrieved thereby and, therefore, was without standing to make the motion, since section 545 of the Code of Civil Procedure authorizes the court to strike out matters as irrelevant or redundant only on motion of a party aggrieved thereby. The plaintiff pleaded the entire article, and alleged that it was maliciously composed and published of and concerning him, and was false. The allegations which have been stricken out as irrelevant aver the truth of parts of the article which do not, at least directly, relate to plaintiff. Plaintiff not only pleaded the entire article as relating to him, but when defendant, before answering, moved to strike out as irrelevant those parts of the article which the allegations of the answer that have been stricken out as irrelevant show were true, plaintiff opposed the motion and filed an affidavit made by one of his attorneys, in which it was insisted that the "entire article annexed to the complaint relates to the plaintiff;" and the motion was denied and the order was affirmed, without opinion by this court. ( 162 App. Div. 903; App. Div. Cases, 1st Dept. Library, vol. 918, case 5605, Mch. 1914; State Law Libr. Cases Briefs, 162 App. Div. 903.^3-11.) Doubtless the trial of the issues will not involve the determination of any facts, although published in the article, which do not relate to the plaintiff and have no bearing on actual or exemplary damages; but those questions were not presented by plaintiff's motion to strike out as irrelevant allegations to the effect that all or certain of the matters published in the alleged libelous article were true, since the plaintiff has based his complaint upon the entire article, and is not required to reply to the facts pleaded in the answer. All of the allegations which have been stricken out tend to show that the article published was true in whole or in part, and relate to nothing else. The plaintiff's position seems to be that the defendant should know which parts of the article he will claim on the trial relate to him, and that it should be confined to such parts in its justification and in pleading facts in mitigation. We are of opinion that that position is untenable. On the plaintiff's pleading the entire article will be before the court and jury, and the defendant is likewise entitled to have its claim with respect to the truth of the article, or of certain parts of it, presented by its pleading. It will then be for the court to limit the evidence to those parts of the article which are material either to the plaintiff's case or to the defense. The plaintiff, having pleaded the entire article, and having successfully opposed defendant's motion to eliminate part of it, cannot now be heard to complain that he is aggrieved by defendant's pleading the truth of the whole or any part of the article. (See Stokes v. Star Co., 69 App. Div. 21; Hamilton v. Hamilton, 124 id. 619; Bradner v. Faulkner, 93 N.Y. 515. )

It follows, therefore, that the order should be modified by denying the motion to strike out allegations other than the denials with respect to which, as already observed, the Special Term correctly ruled, and as modified affirmed, without costs.

INGRAHAM, P.J., MCLAUGHLIN, CLARKE and SCOTT, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.