Herr v. Bamberg

10 How. Pr. 128

• Court: New York Supreme Court
• Decided: August 15, 1854
• Status: Published

Opinion

Harris, Justice.

A demurrer to an answer which does not contain a counter claim is no longer allowable. But the legislature, at the same time this amendment was made, also amended the 152d section of the Code, so as to authorize the court, upon motion, to strike out irrelevant defences. If, therefore, the defences to which this motion relates, are irrelevant, the plaintiff has sought the proper remedy.

The charge as stated in the complaint is, that the plaintiff had swindled the defendant out of the property, and that he was a swindler. In other words, that the plaintiff had, by deliberate artifice, procured the defendant to deliver goods to him, under a pretended contract, but with a fellonious design of appropriating the goods to his own use. {See Bouvier’s Law Die., title “ Swindler.”) The facts stated in the second and fourth defences do not justify such a charge. It is not stated that the goods were delivered to the plaintiff upon his own request—much less is it stated that any fraud or artifice was practiced to obtain them. The substance of what is alleged is, in brief, that the defendant and his partner had entered into an agreement with the plaintiff and his partner, by which the latter were to sell goods of the former upon commission. They received goods upon these terms, and, when called upon to account for them, they refused. The conduct of the plaintiff, as stated in these defences, may or may not have been dishonest, but certainly there is nothing which gives it the least complexion of a swindling transaction. The matter alleged does not constitute a defence, and is therefore irrelevant. The defendant would not "be allowed to prove it, upon the trial, as a justification of the charge."

Nor should thefourth defence, which sets up the same matter in mitigation of damages, be allowed to stand. Before the adoption of the Code, as the law had been settled, a defendant, in an action for libel or slander, might give evidence in mitigation of damages in all cases, except where he had set up a justification. He was not allowed both to justify and mitigate. If, upon the trial, he failed to make out a complete justification, though he might approach ever so near to it, the jury were to be instructed that the fact that the defendant had attempted to justify and had failed in the attempt, was to be regarded by them as a repetition of the charge in a more solemn form, and that, for this reason, the damages should be increased. At the same time, having attempted to justify, it was held, that the defendant had precluded himself from proving any thing to mitigate his offence. This was regarded as injustice, and the legislature undertook to provide a remedy for the evil by adopting the 165th section of the Code, by which it was intended to provide that, in all cases, whether a defendant justified or not, if he had legitimate evidence to mitigate damages, he might have the benefit of it. He was no longer to be compelled, as he had been, to elect beforehand whether he would rely upon a justification-or matter in mitigation. The legislature declared by this section that there was nothing improper or unjust in allowing a defendant to justify, if he could, and, if he failed in that, then to prove what he could in mitigation of damages. The law on this subject, both as it existed before the change referred to, and as it now exists, is stated with admirable clearness and accuracy by Mr. Justice T. R. Strong in Bush agt. Prosser, (13 Barb. 221.)

But mitigating circumstances are not the subject of an issue. The defendant in pleading new matter is restricted, in the 149th section of the Code, to such matter as constitutes a defence. This of course wTould exclude matter which conceded a cause of action, and merely tended to reduce the damages to be recovered. But for the provision contained in the 165th section of the Code, a defendant would have no authority, in any case, to allege mitigating circumstances in his pleading. That section, as I understand it, limits this authority to cases where the defendant alleges the truth of the charge. In other cases the defendant may now, as he might have done before, prove mitigating circumstances without pleading them. (Graham agt. Stone, 6 How. 15; Meyer agt. Shultz, 4 Sand. 664; Newman agt. Otto, 4 Sand. 669; Fry agt. Bennett, 5 Sand. 54; Matthews agt. Beach, 5 Sand. 264.)

Nor can I concur in the view of my brother Shanicland, in Stiles agt. Comstock, (9 How. 48,) that because matter in mitigation of damages is neither irrelevant nor redundant, it cannot be stricken out. We strike out a demurrer or reply to an answer, because such a pleading is unauthorized. A rejoinder might contain matters very important for the plaintiff to prove, and so would be neither irrelevant nor redundant; and yet, I suppose, no court would hesitate to strike out such a pleading, for the reason that it is unauthorized. So, when a defence, as pleaded, contains nothing but mitigating circumstances, it should be stricken out, because the law has not authorized such .a defence.

Having determined that the second defence, which alleges matter by way of justification, should be stricken out, the matter alleged in connection with that defence in mitigation of -damages must fall with it, for the reason that such matter is ■only pleadable with a justification. I do not think the facts alleged for that purpose, if true, would be allowed as evidence to mitigate damages. But whether they would or not, is a question to be determined upon the trial.

The motion to strike out the two defences specified on the motion must be granted, with costs.