Howard v. Raymond

11 Abb. Pr. 155

Opinion

Hoffman, J.

I think the answer in the present case is within section 165 of the Code, as interpreted by the case of Bush a. Prosser (1 Kern., 357). There are allegations which, fairly construed, amount to a justification of the libel, and there are circumstances stated avowedly in mitigation of damages.

I think (but I believe the point is new), that it is immaterial that the matters stated in mitigation, are the same as those presented in justification. In other words, these facts are set forth as an absolute defence to any claim, and if insufficient for that purpose, as a partial defence, by operating to reduce plaintiff’s recovery. In my opinion, this is the construction of the pleading, and this is warranted by the Code.

Demurrer to the answer overruled, with costs.