Supreme Court, February, 1911. [Vol. 71. noted that the defendant does not plead that it believed that the plaintiff was guilty of the crime of forgery, or any crime, or that the news agency or reporter advised the defendant that the facts upon which the charges were based did constitute such crimes or furnished to the defendant any opinion or information upon that subject and upon which defendant relied. All the facts upon which the charges of forgery are based appear upon the face of the article; and, though the defendant believed the facts as to a false facsimile, the charges of felony based thereon were unfounded. It seems to me that, under the peculiar situation presented, and in the absence of an allegation that defendant believed the libelous charges to be true and that it believed the plaintiff was guilty of the crimes attributed to him in the speech in question, this defense must fall. The demurrers to the fourth and fifth defenses involve essentially the same question and may be conveniently considered together. In these defenses it is alleged in substance that the plaintiff caused the alleged libel of which he complains to be published in the New York American and the New York Evening Journal, two newspapers alleged to be controlled by him, and that he also caused a corporation known as the Hearst Syndicate, of which it is alleged he is the owner and principal stockholder, to sell the alleged libel as an item of news to various newspapers published in the city of New York and elsewhere. It is well settled that, in determining the amount of damages where the publication is libelous per se, the jury has the right to consider the mental suffering which may have been occasioned to the plaintiff by the publication. Van Ingen v. Star Co., 1 App. Div. 429, 433. In 16 American and English Encyclopedia of Law (at p. 1107), it is said: "It cannot be disputed that it is open to the defendant to show also matters which legitimately tend to establish that the actual injury sustained by the plaintiff is not so great as he would make it appear, and thus reduce the amount of actual damages." The republication of the article in plaintiff's newspapers and its sale to others may, it seems to me, be a matter for the consideration of the jury in determining the extent of Misc.] Supreme Court, February, 1911. the shame, mortification and disgrace suffered by the plaintiff. The jury might properly infer from these facts that the plaintiff did not regard the publication as reflecting seriously upon his reputation or of such a nature as to discredit him in the eyes of the community, and in this respect these facts may bear directly upon and tend to mitigate some of the elements that would enter into the determination of the amount of damages to which he may be entitled. The demurrer to these defenses should be overruled. For a second cause of action, the plaintiff reiterates the publication of the article which forms the subject of the first cause of action, and alleges that, upon the 30th of April, 1910, the defendant published in its newspaper an article commenting upon the speech of Mayor Gaynor in refutation of the attack of the plaintiff upon him and in the course of which reference is made to the "nefarious methods used by sensational papers to throw suspicion on the motives of people whom they do not like and who are not willing to further their schemes." The plaintiff further alleges by way of innuendo that the said publication falsely charged and sought to convey to its readers the meaning that the charge of felony against the plaintiff in the publication of the defendant on April 29, 1910, was true, and had been so proved by subsequent investigation, and that the accusation of the plaintiff against the mayor, that he had failed to prevent the payment of the check, was a false statement, and that the plaintiff had lied and misrepresented the facts concerning it, and that the mayor had nothing whatever to do with the payment of the warrant. The first defense of privilege must be held insufficient. This is pleaded as a complete defense and must, therefore, contain all that is necessary to answer the entire cause of action. Sbarboro v. Health Dept., 26 App. Div. 177, 179. The meaning assigned to a publication by innuendo is an issuable fact. Hollingsworth v. Spectator Co., 53 App. Div. 291. The defendant may deny that the defamatory matter bears the assigned meaning and justify it in its primary sense only. Morse v. Press Pub. Co., 49 App. Div. 375, 378; Bower on Defamation, 93, 94. The defendant, how Supreme Court, February, 1911. [Vol. 71. ever, fails to deny in this defense the innuendo attached to the publication upon which this cause of action is based, and it must, therefore, be deemed admitted that the charge of forgery was reiterated therein against the plaintiff. In this aspect of the pleading the defense of privilege must be deemed defective for the reasons stated in the discussion of the similar defense to the first cause of action. The second defense of partial justification is, I think, sufficient. If the jury should find that the plaintiff intentionally suppressed the date of the warrant in order to give false color of support to his attack upon the mayor, or that the facts upon which the plaintiff charged the mayor with the responsibility for the payment of the claim were unfounded, then they might reasonably find that the plaintiff had misrepresented the facts concerning the warrant and thus falsely asserted the mayor's responsibility therefor. The third defense in mitigation of damages should be held sufficient. This defense is substantially to the same effect as the third defense to the first cause of action. If the defendant received the report of the mayor's speech from a news agency or a reporter which it had uniformly found reliable and correct, and published such report in the belief that the facts therein contained respecting the suppression of the date of the warrant were true, and further believed that the attack upon the mayor was unfounded, in view of the circumstances therein set forth, this may tend to mitigate the damages arising out of some of the alleged libelous charges attributed by the innuendo, to wit, that the plaintiff lied and misrepresented the facts of the matter and falsely asserted the mayor's responsibility for the payment of the claim. Robinson v. Evening Post Pub. Co., 39 App. Div. 525, 528, 529. The fourth and fifth defenses to this cause of action are identical in language with the like defenses interposed to the first and second causes of action. It is not claimed, however, in either of these defenses that the publication which is the basis of the second cause of action was either republished in plaintiff's newspapers or resold by him to other newspapers. It was the evident theory of the pleader that Misc.] Supreme Court, February, 1911. the several publications relate to a single controversy, and are so interrelated that the publication and resale of the mayor's original speech, out of which the article pleaded in the second cause of action arises, may be considered in mitigation of the damages arising out of any subsequent libel growing out of the same controversy. I am of opinion, however, that the repetition of the charges by the defendant in a subsequent issue of its newspaper must be treated, in view of the admission of the innuendo to which reference has already been made, as a distinct and independent libel by the defendant. It must be assumed to assert the defendant's belief in the truth of the forgery charges and its own opinion of the plaintiff's conduct; and, while plaintiff might in the course of a public controversy have been willing to republish his adversary's reply, I am unable to perceive how this act in anywise mitigates the damage arising from disgraceful reflections upon plaintiff's conduct and defamatory charges made against him by the defendant in a publication which adopted as its own the charges originally made by Mayor Gaynor. The demurrer to this defense should be sustained. In the third cause of action the plaintiff realleges the libels embraced in the first and second causes of action and then alleges a publication in defendant's newspaper on May 2, 1910, referring to the charges of felony by Mayor Gaynor, already discussed, in which the following statement appeared: "Proven forgeries, you know, are for him (meaning the plaintiff) nothing but 'quibbles." The first defense of privilege to the third cause of action cannot be sustained. Considered merely as a repetition of the original charge made in the mayor's speech, it is defective for the reasons already pointed out in the discussion of the similar defenses to the first and second causes of action; but it is also insufficient upon a further ground. The defendant does not comment upon the speech of the mayor or state any fact in relation thereto, but asserts and declares upon its own responsibility that the charge of forgery was proven. In Odgers on Libel and Slander, 193, it is said: "But if, in repeating the statements of the speaker or witness, the writer expressly or impliedly warrants the accuracy of such state Supreme Court, February, 1911. [Vol. 71. ments and asserts that they are true, then he makes them his own statements and he must justify. He is no longer commenting upon the speech or the evidence; he is asserting facts." Under the principles laid down in the discussion of the second defense interposed to the first cause of action, the demurrer to the second defense of partial justification must be sustained; and for the reasons stated in considering the demurrers to the similar defenses interposed to the first and second causes of action the demurrer to the third, fourth and fifth defenses in mitigation of damages must be sustained. Costs are awarded plaintiff, with leave, however, to defendant to serve an amended answer upon payment of costs. WILLIAM RANDOLPH HEARST, Plaintiff, v. HERMAN Ridder, Defendant. (Supreme Court, New York Special Term, February, 1911.) Libel and slander: Extent, aggravation and mitigation of damages Matter in mitigation in general: Pleading - Plea or answerMatter in mitigation - Conclusion without facts. The naked allegation of the belief in the truth of a libelous charge, unsupported by the statement of a single fact or circumstance upon which such belief is based, is insufficient to constitute a defense in mitigation of damages to an action for libel. DEMURRERS to defenses. Clarence J. Shearn, for plaintiff. Amend & Amend, for defendant. GREENBAUM, J. The questions raised by the demurrers to the various defenses in this action are, except as to the fifth defense to each of the three causes of action alleged, similar to those discussed in the opinion in Hearst v. New Yorker Staats Zeitung (ante, p. 7). In this defense, which is pleaded in mitigation of damages, it is alleged |