FERO v. RUSCOE

Full title: FERO vs . RUSCOE

Court: Court of Appeals of the State of New York

Date published: Oct 1, 1850

4 N.Y. 162 (N.Y. 1850)

Opinion

October Term, 1850

N. Hill, Jr. for appellant. T. Smith, for respondent.

BRONSON, Ch. J.

When one who is sued for defamation deliberately reaffirms the slander, and puts it on the records of the court by way of justification, if he fail to establish the truth of his plea, he has done the plaintiff a new injury, which may properly be regarded as an aggravation of the original wrong. It is said that the attempt to justify may be made in good faith, or the honest belief that the plaintiff is guilty of the matter laid to his charge. That may be so; but the injury to the plaintiff is not diminished by the mistaken belief of the defendant. And when a man is called into court for charging another with a crime, he ought to pause and examine before he repeats the charge, and places it on record; and if he makes a mistake in such a matter, it should be at his peril, and not at the peril of the injured party.

The justification must be as broad as the charge; and if the defendant fails in an attempt to prove it true, he is entitled to no benefit from the evidence which may have tended in that direction. There is no such thing as a half-way justification. When several distinct things are charged, the defendant may justify as to one, though he may not be able to do so as to all; but as to any one charge, the justification will either be every thing or nothing. If the charge be of stealing a horse, it is not half of a defence, nor any part of one, to show that the plaintiff took the horse by a mere trespass: or if the charge be perjury, proof that the plaintiff swore falsely through an innocent mistake amounts to nothing. If the plaintiff offers evidence which goes only part of the way towards a justification, all will agree that it should be rejected, because it does not cover the whole ground; and clearly the defendant ought not to gain any thing by offering to prove more than he can, and thus getting in evidence which would otherwise have been excluded.

When the defendant pleads the general issue, and nothing else, he may show if he can, that the alledged slander was a privileged communication; or give other evidence to disprove malice. But he is not at liberty under that plea, to prove the truth of the charge, nor to give evidence tending in that direction. He can neither do it as a complete defence, nor by way of mitigating damages.

All the questions made by this case have been settled against the defendant in this state; ( Shepard v. Merrill, 13 John. 475; Van Ankin v. Westfall, 14 id. 233; Andrews v. Vanduzer, 11 id. 38; Root v. King, 7 Cowen, 613, and S.C. in error, 4 Wend. 113;) and I am of opinion that the judgment should be affirmed.

Judgment affirmed.