Ormsby v. Douglas

5 Duer 665

• Court: The Superior Court of New York City
• Decided: May 5, 1856
• Status: Published

Opinion

Bosworth, J.

When the answer to a complaint, in an action of slander, denies each and every allegation of the complaint, and then sets up a justification, the court will not compel a defendant to elect one of the defences, and abide by it, and strike out the other. They are not necessarily inconsistent; both may be true. The court will not, on motion, decide that both are not true, when they may be, and the defendant swears that they are. A defendant has an absolute right to set up as many defences as he has, and if he fails, by the death, absence or imperfect memory of his witness, to prove one, it is no reason why he should not be permitted to have the benefit of the other.

It may be true,-that a defendant never spoke the words ohárgéd, and yet it may be true that a plaintiff has committed the offence they impute, and that the defendant can prove it. • It may not betrue, that the defendant spoke the words charged, and yet the misunderstanding, misrecollection, or erroneous impression of those who heard him, may result in testimony establishing, prima, facie, that he did. He may justify, if he had spoken them; and if contrary tó defendant’s conviction of the truth, it shall be proved'he'did speak them, when he did not speak them, the defendant should be allowed to justify. In order to justify, he should not be compelled to- expressly a-dmit that he spoke words which he can conscientiously swear he never did' speak: • The only question submitted being, whether-an answer, in such an action, which denies all the allegations of the complaint, can also be permitted to contain the defence of justification, and .being of the opinion that it can, the motion is denied, but without costs to either party.