The New York Herald Newspaper, September 3, 1865, Page 2

Jie business, and with his opera company and the ‘publi otherwise he has been iy iaered and cee ae te anid libel 00 primed groatly inj ished by the defendanta. nd publiore be’ demands judgment against the defend- fants for the sum of twenty thousand dollars damages, ‘Desides the costs of this action. ane Loy & Dicerssom, Plaintiff's Attorneys. few i — peor B Rage Fae being sworn, says:—The above complaint is true of hisown knowledge, except ‘as to the matters therein stated on information and be- lief, and as to those matters he believes it to be true. MAX MARETZEK. Sworn before me this 30th day of October, 1863. 'W. H. Risigt, Notary Public, City and County THE ANSWER. of New York. SUPERIOR COURT OF THE CITY OF NEW TORK. Maz Mar-izek against William Horace P. .—The defendants appearing by A. B. Tappen, for answer to the complaint say :— First,—They deny any knowledge or information suff- cient to (orm a belief whether or no the allegations of the complaint, from folio one to folio eleven are true. ‘and the sfofendanta further deny, thas, they, 10 print. f publishing the printed matier, firstly alleged to Hibitoustin the complaint firstly get forth, did contrive, or wickedly or maliciously or otherwise intend to ae | @ither the plaintiff or bis business in any and in every the respects set forth in said complaint concerning plaintif and bis business, or either, orm avy manner contrive or intend in and about the said premises, ay or all of the doings and acts alleged against the defend- ants, at folios thirteen and fourteen of the complaint; and they deny that the plaintiff bas beon in Co wise Sapuet. ‘or damaged by reason of anything in com- enorme tr blishit 1 print ro Rretfous, and inthe complaint secondly set forth, did ‘@ontrive, or wickedly or maliciously, or otherwise intend injure either the plaintiff or bis ness in any and in [-- ve oe in said iat, con- ‘every of the ros} Sorning said plain ‘and his business, or either or in any manner contrive or intend in and about the said premises, any or all of the doings and acts alleged inst these defendants at folios seventeen and eigh- teen of the complaint; and they deny that the plaintiff has been in anywise ‘injured or damaged by reason of @nything in said complaint contained. ‘Becond.—And these defendants, reiterating their de- nials in manner and form aforesaid, for a separate and furthor defence, aver that each and every of the said published allegations set up in the first cause of action in ‘the complaint was then and there, and are true in all par- ticulars, and in substance and in effect, because these de- fendants say, that before, and at the time of the happen- ing of the events in the said alleged libellous publication, as well as hereinafter set forth, it was the fact, and the facts were as follows, to wit: That the exhibision of the opera, under management of the plaintiff, was guch a one as no respectable member of the fair ex could patronize without a sacrifice to both taste ‘and modesty, and without running the risk of coming in contact with the characters who, at the times referred to in complaint, made the Opera under plain- tiff’s management their rendezvous; and that the said events were a disgrace to the said opera—and de- fendants do justify the same, and the facts afordbaid set forth as true. ‘Third—And the defendants, reiterating their denials 4n mannor and form aforesaid, for a separate and further defence, aver that each and every of the said published allegations set up in the second cause of action in the complaint was then and there, and are, true in all par- Aiculars; and that they are true in substance and effect, ‘Decause those defendants say that before and at the time ‘of the happening of the events: in the said alleged libel- lous publication, as well as hereinafter set forth, it was the fact, and the facts were at the time mentioned in the said complaint, as follows, to wit: That the Academy of Music was under a cloud; ain in high placos, and that all these deficiencies had been discovered last season by tho public, and that the said Academy of Music was not suc- cessful under management of tho plaints, as a place of public entertainment pecuniarily; that to go to the opera is and was fashionable, and that’ this consideration does cover a multitude of sins, in our so-called best circles, and that whispers did’ begin to circulate that tite Academy of Music was hardly the place for modest and respectable women; and that it was said that, to fill the house, dead-head or’ free tickets had been furnished to people whom no decent citizen could wish to see sit be- side his wife or daughter, and that scarlet women blazed forth, in all their glory and shame, from parquet, dross circle, and box of said Academy of Music, and that the lobbies thereof became infested with representatives from the worst of the city gambling hells, and that ewners of pocketbooks and watches were compelled to Keep a bricht lookout for their valuables, and that decent Patrons of the opera wero incensed by the report that one of the female artistes, who was aa 8 prominent place in the bills, was the mistress of a male member of the troupe of said plaintiff, and that her private character ‘was such that it was an insult to every virtuous woman in the house to allow her on the stage; and that the old frequenters of the Academy of Music on opera nights were displeased with these things, and that it was in- tended that said plaintiff should not have a further lease Of the promisos; and the defendants do justify the same, and the facts aforesaid set forth, as true. Fourth—And, for a further and separate detence, reiterating all the previous denials, in manner and form ‘as they have beon aforesaid pleaded, the defendants, fur. thor answering, say they plead and will insist upon all the mattors in their foregoing secoud caus of separate defence, and do again set up the same, as mitigating cir- cumstances against any damages claimed of these de- fondants. vifth—And, for a further and separate defence, reiter- ating all the previous denials in manner and form as they have been aforesaid pleaded, these defendants, further answering, say that they plead and will imi the matters in the foregoing third cause of paral defence, and do again set up the same, as mitigating cir- cumstances against any damages claimed of these de- fendants. - ‘Sizth—And these defendants, reiterating their previous nials in manner and form as aforesaid pleaded, do, as urther and separate defence, aver that they printed and published the said facts complained of in cause of action number one, in the course of their business as public journalists, ‘and they bad been, in their capacity ‘Of the editors referred to in the complaint credibly, and from motives of public policy, informed thereof, and that they believed the same to be true; and that, in their eaid capacities a8 public journalists, they had been re- quested by tho plaintif’ to speak of his opera for the best advantage of the public, and that they ‘Delieved it was for the best advantage of the pub- lic, as well as of the plaintiff, to know and ‘be’ advised of these aforesaid matters, and that they had, in doing as in this cause of defence men- tioned, no malice towards the plaintiff, nor ill will towards him, nor intent to injur> him or his busi- Bess, and that the said matters were and are fair and legitimate matters of public news and items ‘of particular and general interest to the reading pub- Jic, and were fair and candid commentson a place of public arnusement, and were published for the purpose of disseminating among the persons, subscribers to their said newspaper, information which these defendants, as aforesaid, believed to be trne, and such as, if true, ought ‘40 be so published for the ‘information aforesaid, and they therefore plead and will insist upou the foregoing averments in mitigation of damages. ‘Seventh. And these defendants, reitera\ing their pre: vious denials, in manner and form as aforesaid pleaded, © asafurther and separate defence, ayer that they Priced and published the said facts complained of in Causof action number two, in the course ef their busi- CSS Myublic journalists, and that they had een in their capacitY aq the editors referred to in the complaint credibly “4 from motives of public polioy in ed thereof, an they believe the same to be trus, and that in theit' iq capacities as public jourralists they had been requéog by the plaintiff to speak of hisopera for the best advivage of the public, and that they be- Hove it was for thpost advantage of the public as well af of she plaintifl “enow and be advised of these afore- said matters; and thh +ney wad in doing, asin this cause of defence mentioned, xo malice towards the plain. tif, nor ill-will toward hi’, jor intent to injure him or his business, and that the s4d matters were and are fair and logitimate matter of iublic news and items of pat- ticular and general interee to the reading public, and were fair and candid comaynts on a place of public Smusoment, and were pubighed for the purpose of dis , Sominating among the persns, subscribers to their said newspaper, information whih these defendants as afore- po tase to be true, and uch, if true, ought to be 80 ished for the informatiotaforesaid, and they there- poy be a insist ujO the foregoing averments And reiterating their previous deniala in man- Ber and form as aforesaid, fraded as a further cause of mitigation of Gaon, thes defendants aver that the inti by a yk here. Formed and believe, “writen by More, a2 S27, lished ne, the’ past dfteen ye. “Crote! and Quavers,"” bas admitted, of that which is contained in folios one, tn 4pomtrary four of the complaint, and has therein’ and’. the con. af and within the time aforesaid, «ibeian tially that he was achariatan in opettman. @gomont, and has thercin and to the contrary al . and within the time aforesaid, substantially boased his ability and success in humbugging the opera piic, Ninth.—And these defendants again reiterating heir we dig odors in manner and form, as the same hive hereinbefore pleaded as a further and cause of defence, aver ey, way of justifying as true we a an of hae libellous pe ani way tigation of damages as true, that under the Jessecesh ip o_9 ony Co og et the —_ and place ment io complaint, was disgraced by an attendance at the operatic performances under pal Uif's lesseeship, of bad and improper characters of mal ex, who were pickpockets, but w! pames and resi. Gences are to defendants now anknown, and of female Bex, to wit, kept mistresses, courtezans, and in hhouses of assignation, and houses of prostitution, but ‘whose names and residences are to dante now un- Known, attended by their male ki friends and ad- mirors, but whose names and jences are to defen- ants now unknown, which several described persons ‘were in some instances brought there by and under wards of free admission, furnished UT ip regular agents, and that some of the stockholders and subsorib- fads the Academy of Music complained to those de- fendants of said things, and that suc Forsamne matters vero publicly canvassed by the general public. amiant of ee compte tants nal ie ee bse plaint bere for thelr hod dleborvements of ection A. B. Tarren, Defendant's Attorney. Cityand New York, #8.: Wittam Sauleeell being duly sworn, says—That he is ue of the defendants in the above entitied action; that t.e foregoing answer is true to his own knowledge, ex Copt asto the matters therein stated on thformation and belief, and ag to those matters, he believes it to be true, ieets tobe 'an alk oe Wiuiam CAULDWELL. m of February, 1864, J. Comine, Notary Public. { ‘ =e MOTION TO AMEND ANSWER. SUPERIOR COURT OF THR CITY OF NEW YORK. Maa Mareteck againn William Cauldwell and Horace » Whitney. The plaintiff requires the defendants to make more Poiinite and certain their answers, 90 the precise pature of the or be ‘opparent the following partieviare aie See P pian alas of the Toheth decence, roterring to tue ~ them, or giving ‘some deseriy tified; and at what time, dat PI had beon furnished, whom no decent citizon could to see sit lo his wife or daughter, also what scarlet women, giving their names or such description of them as may be sufficient to discover the identity of the said persons blazed forth, in all their and shame, from a. dress circle and box of said Academy, and that they setforth the times and dates when the same was, and that they set out what persons, setting forth their names, or such description of them as may be sufficient to discover the identy of the same, who were the repre- sentatives of the worst class of gambling heils, who in- fested the lobbies of said Academy, and give the times and dates of the times so referred to, and that they set forth the persons and their names, or give such descrip- tion as may be sufficient to identify them who were the owners of pocketbooks and watches who were compelled to keep # bright lookout for their valuables, and the times and dates referred to; and that they name, or will give such a description as will be sufficient to identify them, of the decent patrons who were incensed by the reporis in reference to the female artiste above alluded toin folio ten of said answer; and that they name the male member of said troupe, and the said artist so re- ferred to. And that they further set forth what fre- quenters of the opera and Academy, giving their and each of their names, or descriptions to identify — as have been displeased, as is set out in folio eleven o' the said answer; and that the said defendants set out at what page or pages, or part of the book, and what mat- ter or words, referred to in their eighth defence, in miti- gation of damages, the plaintiff substantially confessed that he was acharlatan in opera management, and also, at what page or pages, or part or parts of said book, he substantially boasted of his ability and success in hum- bugging the opera public, and admitted to the authority of folios one, two, throe and four of the complaint. And the plainuiif hereby requires the said defendants to strike out as irrelevent and redundant the sixth, sev- enth and ninth matters of defences set up or pleaded and averred, and also the part of the eighth defence above referred to, in mitigation of damages; and in case any or either of them be not stricken out and withdrawn, that the said defendants make more definite and cer- tain by whom, giving the names of such persons, or such descriptions a8 will be sufficient to identify the same, and each of them they were credibly, and from motives of public policy informed of the matters alleged, or in- tended so to be, in the sixth and seventh separate de- fence of the said defendants, and the times and places and manner of auch information; and, further, that they set out what regular agents, giving their names and do- scriptions, so as to identify them, of the plaintiff, alluded to by said defendanis, as furnishing cards of free admission to the persons mentioned, or intended 60 to be,in the ninth separate defence of the defendants, and the times of the furnishing thereof, and that they set out what stockholders and subscribers of the Aoa- demy of Music, giving their names or descriptions, 80 a to identify them, and each of them, who complained, and the times they so complained, to the defendants, as alleged in the ninth separate defence of the defendants, in folio twenty-three. ‘And you will please take notice that on tho 20th day of February, at ten A. M. of that day, or as goon there- after as counsel can be heard, we sball move this court, at special term, at chambers, at the City Hall of the city of New York, for an order that the defendants make their said answer more definite and certain in the mat- ters and particulars above set forth as indefinite and un- certain, and that the matters above set out in the alxth, seventh, eighth and ninth matters of defence as irrelevant, redundant aud immaterial, be stricken out or made definite and certain, as is above particularized, with the costs of the motion. Dated Feb. eal 1864. pau & Dicaiwsox, Plaintiff's Attorney. To A. B. Tarrex, Esq., Defendants’ Attorneys. THE PLAINTIFF'S DEMURRERS. SUPKRIOR COURT OF THE CITY OF NEW YORK. Maz Maretiek against William Cauldwel and Horace P. Whiiney.—Demurrer. Tho plaintiff demurs to the first defence of the defend- ants, as not sufficient in law. 1.'It endeavors to raise an immatorial issue in the denial or controverting of the allegations of the com- plaint, from folio one to folio eleven. ‘And also in endeavoring to put in issue the intent of the defendants in printing and publishing the libels first in the complaint act out, and also the intent of the de- fendants in the matters alleged at folios thirteen and fourteen of the complaint, and also the intent of the de- fendants in publishimg and printing the libel second in the complaint set out, and also the intent of the defend- ants as to the matters alleged at folios seventeen and eightecn of the complaint. ‘2. That the matter of the said first answer is not legally pleaded, and constitutes no defence to the said libels, or olthor of th nor is a justification of said libels, or either of them; nor is an answer to the complaint, or any one or either of the causes of actin in the said com- plaint, set forth. ‘3d. That the matter attempted to bo set up in defence is not issuable and is immaterial. 4th. That said answer does not establish or show facts, or aver the truth of said libels. bth. That said answer is not as broad as the charge. 6th. That the traverse of motives and intents is not a sufficient traverse. ‘7th. That the answer of the dofendants that the plain- tiff was not damnified, is vicious, impertinent, and ne issue, or immaterial one. 8th. That the answer in the matter thereof 1s double, and the separate defences are pleaded, 80 that no correct issue can be had. (This demurrer withdrawn.) Second.—The plaintiff demurs to the second separate defence of the detendants, and says the same is not a sufficient answer in law to the said causes of action, which it attempts or pretends to answer. ‘Ist. The matter of said defence, as pleaded, is general, and not specific, nor is it issuable. ‘24, The matter of dofence does not answor tho first cause or action set forth in the complaint. ‘34. The said second defence ‘RO answer, nor does it amount to the justification it attempts or pretends to set up. 4th. Tho matters set ap as the cause of the defend. ants’ allegations of the truth of the libels first charged im the complaint are not facts, or matters which are legally pi ‘and do not as pleaded constitute cithor a defence or a justification of the libel. Sth. That said answer does not establish or show facts, or aver the truth of said libels. 6th. That said answer is not as broad as tho charge. ‘7th. That the traverse of motives and intent is nots ——s traverse, ‘That the answer of the defendants, that the plain- tiff was not damnified, is vicious, impertinent, and an immaterial or no issu aa issue 1. 9. That the answer in the matter thereof is double, can " Third—Tho Lgl demurs to the third separate de- the sej defences are led 80 that no correct boned. bi ie fence of the said defendants, and saya the same is nota sufficient answer in law to tho cause ef action which it See Sl SS pte geo, 4 fence not specially, and ie, not issuable, iy, 2. The matter of said defence does not answer tho sec- ond cause of action set out in the complaint. 3. The said third defence is no answer, nor does it amount to the justification it attempts or pretends to eet up. ifs That the matters set up in the cause of the defendants’ alletations of the truth of the libols secondi; a egaly ly the tare not facts, or matters which are vlad ao pt a jeaded constitute either a d ie or le . That oraverihe waa ibe Sunn cr show etn H That ind anstee is not as broad as the charge. PR ig Wwersé vt motives and intents is not a suf- 8. That the answer of the defendants, that the plaintif was not dam touean oi is vicious, impertinent and an imma- 9% That the answer in the mat thereof is doubl and the isms cane had are #0 that no ‘correch rel for want of Mcient answor half, the piaue prays jadgm ent, ue. a Judan & Dickinson, attorneys for plaintiff. TAS DEMURRERS OVERRULED—ORDER FOR AMEND- MINT OF ANSWER. Special Te SUPERIOR COURT. ‘erm, April 30, 1864. Prosont—Hon, A. L. Hotortoon, Chiet Justice, Max Mardeck agains Wiuiam Cauldwell and another, — The domurrers to the defendants’ first, second and third defences or allogations of mitigating circumstances in thoir answer, and als) the motion to 0 out or make more definite and certain the other defences get up in the an- swer of the defendants in this cause, coming on to be heard, and and fitng notte of mojjon, &c. and after hearing 8.8. H. Judah, for the plaintiff, in su of the domurrers and the mobivs, 4 A. O. Hall in opposition thereto, and it appéaring wpa wtf can be given on the defnurrers, as they rate By for that reason that they be ov iy y to the plaintiff to withdraw ens, with liberty to move to make more definite d certain the second and third defences, in the answer Of the defendants if he so desire, and it ix further or- dered that the motion to make more definite and certain parts of the fourth and fifth, sixth, soventh and eighth defences in tho said answer, of to strike Out as irrele- : F : E i t i: ! i D , SUNDAY, SEPTEMBER 3, 1865. vant and redundant the sixth and seventh and bors and other good and worthy cfizens of anid State to | Madison square, (tee meaning) ing) of “arouses and ‘answers of the defondsais | whom he was (many wise known, as @ persos hom oo somes ont papa" pot oe Ota teria ort eapecaio Mfath defsane in the sald suswer’ the’ dofoodaa Pie vinta further shows that been Sealy Soorian Smet ‘ anaes Suid defendants, shows that detease tn the said = “4 ne ~ bo at tee ‘an ae audiences at aeakomg of fone Sia January, the defendant ale Uberty to withdraw the Or else ‘imake the samme | for dftooe years past, in business as.aconducior, manager | meaning te of day a. folealt more detinite and cortain in the following particulars to and or ruler of © tenage of compeer of and the perenne whe frequent Gao came and peiraniss ibs wicked, ee pon and om "o of the ess has aoquired a reputation ante Sos ned Sista! poopie, sibs lived in ot the worst, waid public aomriain thot fale, sas D by the da ic ‘and and im the city of Ye ‘And malicious and article and libel of Diaiolid alluded to by th ‘defendants, as furnishing cards | name and fame, and bas at all times conducted bis said parte | ory nf gt lous, ~~ ond of ana ing bie of fees admission to She pomsene mostions’ a inlendet per eebepege Cary Bey and good © further f. By actioa, concerning the plaipllt, Sots and Quavers--The f ‘90 to be in the said faith towards the ‘and those who attended, or wore gy the 90h day ie ieeaceenea ot Gots Chad. answer of the defen im the habit of frequenting tke performances given by the November, the , malicious: 7 Jimmy (on Spa ye misbe:i the said free piaiotif and bie company. wickedly, aod iad publioned breakors aod becsiene naa or fends ts get out what ‘And the further says he has never committed, | and coused to be printed aad | tng again of the ee ieee ot tek png dedersor yd tem or been pi Ry Ce Tf 2 onan OF = Meo’ galas the Btn thom, and each of" to be charged by tbe defendants in and oy ons ie of waing the am wo Seniesa e oa cicinad to’ the defendante ™And the plaintit’ further shows thet for TMarecson (the plainud nd warmancurres'™ | sa isue (mencing that mid sult would be s0oa ready ined to bine however loag ‘which ‘afford the desired opportunity Yor coparete Salenes, in: ne ae to wit: for fourteen years last past, he bas SThe caret Be wae Se will = pode crmnyes Bo talow chtdrawing tbe 6 noone und hired, for the parnoes of | succinyl wacacast toe bigh moral tone of sect life | ied we Mhuniraive of : ‘unless withdrawing the giving representations of operas, speotacies, ‘other | aivance at ot ry life, u enenen, ihuatretie ninth separate defence performances by and with eomage os comeney, am hich should be eecintnion’ © oc te Helen and teeta certain in the said particulars, ous public in the city of York ‘other | up as caterers enennees opera. - (the. plaii suck eleotion, and citiog, among others the or opere house in the gy seen an | service of this order, city of New York, called the 9 Sacia, oe sare retributive oon So saoger of | prosperity election by that time, bod ip Ken p rarwe ne Tepresentations later. In vain dove be seek to evede: sympa Paper meaning), either patty. credit and ‘aame, aad to numerous, large aad re- tenction alwage tabes place, the sonics Bul br} oe aan. (Acopy.) spectable audiences aad persons with great guiae end of the coseapecting at A -yX 2 Pd ER ay saz the ‘plaintiff farther ehows thet the coste and ox: fore hem fa alt Ws, sabes oferty, ot oer Sat icceat uh Po ey Wiliam Oouldwelt and Horace | [S00 onus ca mi basinms, ar ud wore ery Ee leanings hae at test ducovered. that ta eit athe to ran wh Gene Take ction Hae Ses ponent apeene © tho Gea- and tas bie sole dePtinood and thes of bie faelly, = peerare fo toe calrety: Naat conver) the reniaation tid me eal Tormnat thin Conese eee. ae tone orate, aud is in the profitable and successful result of sald of tha "ugly fact conses bam Pinieu® mesaing) | (ine plate o by the Hon. A. L. Roberteoa, Chief Justioa, to wit, that | PUNE 6 tuner saps his ability to perform b. jitore’ re. | tere, or Reveletiousot part of satd order which overruies the demurrers of the | ni, under the ‘and each demise, | sponsibilities pe wy pend | Max bMaretses,” be plnelil, to ihe seeped ae nes 20 hii Music by onaingh, ont bo ge plead eee the icert. and aud the fourth, Afth, particuiars, aod the colh eighth, defences of the answer —_ tegen on whoie will honk od \ of five months; sald term to be sperene he (the plsiaus, motion to sti redundant, the given by the plaintiff should be tbe I~ e re sixth and seventh, and part of eighth defences, and any | gag ‘expenses. of the perfor ‘and enable | we have to apeas ont | love allow the ; snewecs of tly ioe denne He thg.:gotoe. of iin ter pgy for voe sald Academy and maintain bimeclf While too many of ovr ihe fefecaamis meaning) costor: | to such base uses (meaning 10 the plaintiff and trolton before the Special Torm, Yours, &., bite forarng bare ewe euscet einer eam teri 0 to perform). Bettor for them to lease it out Jopan & Diceinson, for Plaintiff. ia rep Jnintiff Curther says, that for the of or aympathy with course by thie Dank Prete as ‘am arena for his oratorical po kD hee, ee Pa oer ck “during. the said term and | would-be lender (the plat measiogy taste in | which case ibere will be no fear of decency or B.D. Laveen, Glock of Superior Court SATTTINE OF Turthie tories as be’ Wight be ‘able to carry | the highest ie (ine Pian wtne bosere Love faites off | morals Dring tapped of outtaned. | for on the same, and to give good and ri perform. | rapidly. -—--* Plainut moaning) ‘should rent @ basement, stick THE POINTS IN DISPUTE BEFORE JUSTICE ROBINSON— bet opera and Sabor perfe 4 apectacios Say ome posh enn from plaiat® meas. b— x4 pen ok eee Coys proton fot THE DECISION OF THE COUBT. connected with his said busing be Iaid out, and ex antecedents, ‘the evident oe pan romume the (un . NEW YORK SUPERIOR 1864. pended, and became, and was liable for a larze sum of | wi Ce grossness in the bu = pom by wings pode hairdresser), oF proc ies ar coated Wallan Casi eal et a Robot money Ow undvabout the ongaging aud paying of - his (tbe were, (ecea Peamieea thes | Av ihe mua plant! for a turther ad er i — answer a3 a ‘ne platati®! meening) eoceuregee ‘couse defendants, show: fenée ia not demurrable, because it merely takes issue on | merous singers, Pectormers, rang A = C .. ptt Apooulative propensities ia a = ~ line, ur day of sary 1008, the sald defends : allegations m_he comtplalas, . {Oede, set, 168, Baiitba ye. aoe aot pectacice’ and whe eald. Leadoa trace his managerial carcer back, an@ you wili find that be wickedly, wrongfully and unjustly Greening, 2 Sandf. R., 8. C., 702.) if they are immate- ee, 7 OF | as constantly shows bie fe cotati "tea" bp tod, cod caused to be printed. and publish Hial, the only remedy for any prejudice arising there- th rete ioveya that the said defendants | Fat women and fat mon, when their talent was mediocre, | Cee oni newspaper a cortain other f from to the plaintiff they” stood alone, would be to | 2 ieee editors and prop f ‘a. public news pot Th es scandalous, and detamatory article and move for judgment, and if they seriously’ encumbered | f° Publishers, editors and proprietors of © PANG Raita | proach to merit he became costs," He was the ranks | of and concerning the ‘and of and concern! the record 40 elrike them out: under section 160 of the M Ooty oo movapsper asthe defend: | admirer of Steflanoui the Pat, and gave the cold shoulder | bis said business, 10 wi beading the said article wid Soge._- Whether Be wgsid ¥en Lin the latter mo- | the Sunday Mercury, wher vost ‘cireulation of any Sunday | to Bosio the This, singer What ube wan He de | the “The Wroiched Marctzek's (the tion may be doubted. (King va. Utica Ins, Co., 6 How. | Snis.alloge,, “has ihe largeat Crowle tt at os and | lighted im Marini couse te wan 0 beg tae ands SeSantua) Troupe te Court.-Marotzek (che plaintul m R , 480.) ROWSDADEE 1 te Coty ee te eviated, issued and | ful. The olvaginous Salvi, whe looked ‘ae Wf tard oil | ing) attempted to levy oa the Mercury (the ‘the cnly question under the demurrer to the second | that weekly threo editions theraof are printed, i frould exude you squecshd him, was bis special a rie vest tne. tans of, $50,000, white and third defences i whether the charges in the defama- | Published by Wee. Sed Nin Tred tnoueand copies of said | But we might multiply vwstanons of his past Anoka fie | Binohs only wanted her (a person in ald article ref aan ca deers cinplained, Of are ao apecite shatan | ond believes that one bundred thousand copies of said | Tit Ne with Me found ts climax 10. ie present. Not | 9) @ come dow to the extout of $100. This shows th averment of their truth is sufficient as against a po peony et it pues a “ Content with the fat and Medort as bis leading | these Italian banditti graduate tho demands accord murrer. Averments, in an answer, of specific facts are | SA "Ene Diainuitt further shows that, previous to the ne has aided amatier of still Iagger proporuons | 1 the presumed ability to inect them of tho partics Tecenary, when Ue accusation is goneral of stealing, | .,ANd (te, Divi (eet at ana on OF about the dist end truly pouderous His leading tenor and bari. | are summoned to stand and dehver.” (Meantu; dishonesty ‘and the like. (Anon, 3 How. P. Rep., 400, | Sommencoment Ot shit trata commenced an action | tone singers are both Ee unt are tan vering om that | plainttfl ix, and that bis ‘are, a set of bandite Fry vs. Bennott, 6 Sandf, R., 64.)” But the charge in the | day of Cetober, itt, ne Buty “ana Horace P. Whit- | wheozing condition which aitends « gross haiut of wody | robbers, sad ‘summoned of demanded persons oF publications in question of the unfitness of the plaintiff's | 9€%inst the sald Willian Rut AN: timages for the pub- | in man or animal m the race they are toomulate | to sand and deliver up their money ety, Pxhibitions for ‘the resort of respectable persous, 18 ac- | Rey in this court for the rocovory of Mamughe ee RTS | the ite of poor dead pin ay Ee {the plain. | effects, as bandite and robbers are to do, companied by specific. charges of of persons of specified | lication of other fate, Mastin Tih aia sunday ie: | tif meaning) ardently admired, As to Bisehi and Sulver, | teking from them, oF ‘so much mone iarpoeed- and. Ulagal Bissalse and)-coupedions, 4 19 aa aatelod concerning the plaintiff and his said business | they are #0 and ever their | property a the porsoms the ability to h plaintif’s pormission and encouragement which is suff. | C¥r¥,,of and concory ae Oe ee can loed affairs that they have no time to reach the standard | over to such robber of bandit.) sient to make: simsiiar, evermense is a detunce's. good and the manner he Conner shows that the said defend. | of excolionce in Marotaek’s eyes, which is asore matter | And the piauntill shows thal in, bis charate O08 6 leading as against a demurrer. (Van Wyck vs. Guthrie, | , And the Deve the publ f the said | of grief to him. We have arrived at this conclusion and a manager, conductor and lessee as aforesaid, Tuer it, 268; 8G ITN. ¥. B., 100, sud nom, Van | Ants have, novoritelei®, soe Mie Tel Heation Of amed to, | thar he cannot forget bis propensity for | 1a his business, and with his ‘company and the p Wyck vs! Aspinwall.) If the plaintif’' wishes. further | Ubellous rantiers, U0) Of ine matterherein compiainod | fat, and that he must be partner io | lie, and otherwise as a food ckizen, be has Deon Information, the Code. (sootion 160) furnishes ample | and since the pabiceion ot Te Sie the publication in the | that soap and oandie factory on Salve ‘which | damaged by the said libels #0 printed and p remedy for any defect in tho definttoness and cortainty | Of Se Basco: OP oinor false, acandalous, mall- | Garibaldi ostablished, a also ‘with an oye to | the aad defendants. And the said plaintil's oF the aa She ASE MAS therefore, be over- | $1, “Yoramatory and libelolus matter, of and concerning | commercial as well as musical Serdessn, be stows is pT both tose injured, Gamnaged and lnssons The motion, also, to strike out the sixth, seventh and | oho ft arp apon grimace emma ag Co ee sorted to grals and pr sy the perfurmauces given by him, that large numbers ninth defences as redundant or irrelevant must be de- | “ATA the plaintiff further says that the said defendants, | When his singers are totally worn out, and of no furihen ‘who were previously accustomed to or who nied, a8 they alloge new matter, and are not so verbose | oohuiving ‘and. wickedly and maliciously intending to | use to himself oF an ‘else, why ‘then he can molt Live patruasaed the maid eutertaiaments oF or repetitious in their statement aa to subject them to | Sontriving and Trcknalt Ne good name, fame and | them down and convert thto fancy toilet soap, exch | by plaintiil given as aforesaid wore said that objection. mit, and’to injure him as manager, conductor or im- | bearing their hams, which would, doubs tows publications, and each o them, 10 their ‘Tho motion to render more definite and certain the | CFdlt, Ste th oNbnere as aforesaid, and to deprive. bim | find a ready sale among hus (the plain rairous | tronage and to refuse to visit said chtertainments or Ould fourth, fifth, sixth, soventh and eighth defencos raises | Prt penent of the Academy of Music, and his lease and | of the Gent monde meee ee (ine Senet partion of emep- ” | Daions by the plaintiff given as aforesaid. And that the question how far mitigating circumstances set up in | Phere teases thereof, and to injure and destroy his said | courtorans and gamblers) ‘piaeut has lost and been ajured by sald libels, suns ip, eum ar nn ip comenton we | erat anyon, ong Mg td hn ald | Ander ues vs | Sf Seat eutagumesof ts a (section 165) constitute a ofence to the action ao | Dusiness into public scandal, infamy and) Clagrice, wis He wel ones. | cues of and thohens upon the sale and as to require to be circumstances in an answer bo a mere noti If allegations of spilentng ice, it woul not come within the 160th section of the C only requires a pleading to be made definite and certain, e precise nature of the dofonce is not apparent. In the case of Newman vs. Otto ef al., in this court (4 Sandf., 8. 0. Rep., 669), it was held by Judge Duer hat such alleations operuted as a more notice, and were if pleaded alone they might be in Graham ws. Stone, 6 How., P. Rep., 19, and Brown va. 4., 376, both cases in the Court of Appeals, Justices Johnson ‘and Herria hold ocparately aad ively that no facts could be set up in an answer in miti- damages, except when accompanied by an The doctrine so where not a defense ;, because, struck out as frivolous gation of averinent of the truth of the charge. laid down seems to have been disapproved of by Jus- tices Allen and Selden in a subsequent case in the Court sh vs. Prosser, 11 N. Y. R, 347.) The question of Its soundness, howover, did not fairly ariso, nor was its Roar involved in or necessary of Appeals. (Bu the decision of conduct on th of which the d trial, it was not evidence was equally fondant case. ode, The sole question in it was whether evidence offered on the trial, of bad part of the plaintiff, similar to that accused him, was admissible. There was no justification of the truth of the charge in the case, and although the defendant had set out in his answer the facta, of which he offered the evidence on the necessary to hold that they must be pleaded in order to warrant its admission. No objection could have arisen on that score; for whether those alle- gations were a mere notice or formed a pleading, the admissible under either theor Justice Allen seems to have assumed as ‘unquestionable, that anything given in evidence to reduce dai either in an aotion of tort or contract, was a defence witbin the meaning of the Code, (§ 150) which allows as many defences to be set up as the defendant may have. He takes no notice of any distinction in that respect be- tween torts and contracts, 80 admirably pointed out by Judge Duer, in Newman vs. Otto (ubi sup.,) which is, that a partial defence in an action on a contract debt, or sum claimed; mitigating circumstan- necomarily reduces the while in one for tort tue effect ces is uncertain. The jury may give the same damaces, red in reduction are whether the aggravated or miti for tort, Justified. (Rosenthal, ‘vs. Schultz, 4 Sandf.’ 8. C. R. C. 12 How. Rep. Duer Rep. , 646; 8. C. 383; Gilbert v: the whole answer, no judgment within the meaning of given on an issue formed by a the Code could be circumstances proved to have occurred or not. The same cause of tion remains, whether the fet “a te ct 1 Code R. arising from it are former case, no issue could be taken on the matter of aggravation (Steph. on Plead., 243); the reason is equally good why it should not be on matters in diminution. Hence, while partial defences in an action on a contract must be pleaded, (McKyming vs. Ball, 16 New York Rep., 207; Houghton vs. Townsend, § How. as Gleason vs, Moore, 2 Duer Rep. , 640; Barr va. er, 9 Mo. Rep., 840), the whole current of authorities are to set up circumstances in mitigation, unless in an action except for a libel or sian inst the right or duty here the charge 8.,) 228; Scheiden Saltera vs. Kip, § , 943; 2 Abb. P, Rep., Rounds, 14 How. 'R. 46; Travie va. Ba- rer, 24 Barb. R., 614) If such circumstances constituted because it could not be the final determination = merly oxisting sessmont by evidence there is a failure to panies the that provision by in the answer with the Justification, but only in reduction of damages. in mitigation. ‘of the parties (§ 245) without an assessment of mages; and there is nothing in the Code to indicate that it was designed to deprive the defendant of the for- ht of reducing the damages on an as- v (§ 65) which provides for the admission of such circum. stances, notwithstanding the publication is justified and establish such justification, accom. mission to a defendant to avail himself of respect section which to le, ac- is oe If the framers of the Code bad considered circumstances in mitigation to be a defence and an answer to a cause of action within the meaning of the one hundred and fiftieth section, there would have been Ro necessity to require a defendant to set up such cir- but simply (Id that setting them up cumstances, as a defence with a justit The injustice of the former rulo, as to allowing matters in taltigation before a serfs jug not 80 rent as to favor such an am lied, there: THE SECOND SUIT. Superior Court of the City of New York. COMPLAINT. vent him f = i his said busi and to vent him from carrying on his sai nese, vex, harass, oppress, impoverish and wholly ruin him and his said business, did falsely, wickedly and alomls, on the 25th day of October, 1963, at the city of New York, print, publish and cause to be printed and published in their said newspaper, the Sunday Mercury, of and con- cerning tho plaintiff, and of and concerning ‘business, and the manner he conducted the same, and ——, ‘said suit, a certain false, scandalous, malicious and defamatory libel, containing among other things the false, scandalous, malicious, famatory and Libelious matter following, of and concerning the plain- tiff, and of and concerning his business, and the manner he ih enh yrae the same—heading the same with these words: — “Italian Opera vs. the Sunday M Pitiful At tempt to Muzzlo the Press,” thereby alluding to the ac- tion brought by the plaintiff against the defendants for damages for the publication of libelous and defamatory matter in previous numbers or weekly publications of aid newspaper, the Sunday Mereury, viz: ‘We (the de- fendants meani: ee not well expect to throw down the gauntlet so boldly to hypocrisy, impudence, conceit, arrogance and ignorance,”’ (meaning that plaintiff was a hypocrite, and impudent, conceited, ignorant and arro-- gant, and that the plaintiff had been guilty of impudence, Conceit, arrogance and ignorance in conducting and man- aging performances before the public and otherwise) and ‘when the Academy of Music had been conduct: gentlemen who have fully appreciated the character that most respectable building, we (the defendants meaning) have never hesitated to of u iterprise in appropriate terms (meaning thereby that the plaintif’ did not appreciate or conduct the said ager aga re- table one, or one in which respectable performances should be given or Lr rag audiences might gather, and that the plaintiff did not gi rein performances suitable to the respectable of the gaid Academy). «<When the manager has been able to collect a compa- ny of artists of superior professional merit and good moral character, thereby attracting large and respectable au- diences, we (the defendants meaning) have never failed to notice the circumstances with hearty commendation. But it is apparent that the same rule of integrity would compel us (the defendants meaning) to be equally prompt in denouneing the policy of any tmpressario who wight 80 far forget himself and the intelligence of the New York public as to attempt to palm off coarse, tmmodest, worn out debauchees for first class artists, or who might, perchance, convert what ought to be a gathering of the most refined social elements of our city into a mere co. grogation of wantons and their associates. "” (Meaning thereby that the company of artists collected by Log reper and performing under bis management were of no professional merit, and that the plaintif, as the mente, ais or conductor of an opera troupe, had been guilty of attempting to palm off as Grst class singers and artists coarse, immodest, worn out debauchees, or men and women without ability ‘aa vocalists, and of bad moral character. And that they, said defendants, would, through the medium of their said fay denounce the said plaintiff, and that the platotiff bad, or did convert the said Academy of Music from a proper place of public re- sort into an association or ation of wantons, or prostitutes, and other persons of evil character, and their associates). ‘And when we (the defendants meaning) encounter such a man, call himself what he may, let our readers (the readers of the said Sunday Mercury meaning) be assured that he defendants meani! aloud and spare , though a thousand | shaken at our to intimidate us’ (meaning that the a, was a man who bad committed the evil acts 80 Isoly alleged, and that the said defendants would de- pounce bi! e plaintiff, to the public as a man who was such table acts, and that they, the : aq rE re eet i zea° 6 Had li Haile e228 i ! Hj Tt | i i if Z Uoreatin, portion of tion of the character of the audiences who frequent Academy of Music, which will be furnished by our (the defendants meaning) of sisted by the detectives which Mr. intendent of the police of jntiff meaning) mm Pietniad there been man astothe vast up| ‘bers of the stockholders’ boxes remained empty throughout the dead heads occupied ip part by im to make up a any dows Tet ia is last attempt upon and men of questionable means, who fi fo bi ; jaunt themselves in high oe Be ET, Dlind of Chatham street and the ample balt, facilities of ingress and the who were eagerly waiting and did not wait in vain.” edge the {nfinitessimal displayiof hanger their chief,’ and support at all tim for that he (the pated; meaning) bad played Sir Panderer ‘as tho rats always do from a sinki Balvolio of the Treasury, his fu of his mind; and financial engagements a to’ bis : : H ] g - i = i i felt that the he (the plantit? hom ra-on, ushers a sick!; bat that even those to repent in sackc! and comm! 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