Fink v. Justh
The Superior Court of New York City
Motion to compel amendment of a pleading. The action was brought by Eugene" Pink against Emil Justh. It now came before the court on a motion to strike out parts of an answer as irrelevant or redundant ; also to require several alleged defenses to be separated; also to require parts of the answer to be made more definite and certain.
1Opinion of the CourtMonell, J.
It may, I think, be regarded as not an open question whether mere mitigating circumstances alone constitute a defense in an action for libel or verbal slander. The language of the Code is, that a defendant may allege both the truth of the matter charged as defamation, and any mitigating circumstances. That language seems to imply that the mitigating circumstances, except under a justification, cannot be proven. Both may be alleged, and if the justification fails, the mitigating circumstances may nevertheless be proven. They are in the conjunctive and not in the disjunctive. The truth and, not…
2Cases cited3 opinions
- Fry v. BennettThe Superior Court of New York City · 1851
- Van Benschoten v. YapleNew York Supreme Court · 1855
- Howard v. RaymondThe Superior Court of New York City · 1860