Misc.] Supreme Court, July, 1900. XI. The defendant further alleges, upon information and belief, that in or about the month of July, 1897, more than six months after the entry of the decree dissolving the marriage between said Maud Cruikshank and the said William J. Cruikshank, the plaintiff herein, the latter applied to the Supreme Court to set aside the said decree, and that such application was thereafter granted, and the said William J. Cruikshank, the plaintiff herein, was given permission to serve a supplemental answer, which was subsequently served. XII. The defendant further alleges, upon information and belief, that the issues raised by the said amended or supplemental answer, were framed by the Court, and that subsequently, they came on for hearing before Mr. Justice Johnson and a jury in the Supreme Court, Kings County, on or about the 17th of October, 1898, and that in the course of the said trial, and after the opening of the counsel for the said Maud Cruikshank, Almet R. Latson, Esq., stated substantially the matters complained of in the complaint in this action, as appearing in Exhibit 'A' thereof. XIII. The defendant further alleges on information and belief, that on the said trial of this action, the said Maud Cruikshank was represented by Almet R. Latson, Esq., and said William J. Cruikshank, the plaintiff herein, was represented by Charles J. Patterson, as counsel. XIV. The defendant further alleges on information and belief, that the said William J. Cruikshank committed adultery with the said Martha D. Lowe at No. 18 Berkeley Place in the City of Brooklyn on the 24th day of May, 1896, on the 1st day of June, 1896, on the 2d day of June, 1896, on the 5th day of June, 1896, on the 11th day of June, 1896, on the 12th day of June, 1896, on the 15th day of June, 1896, on the 27th day of May, 1896, and on other dates from the year 1892 to the year 1896, inclusive. XV. The defendant further alleges on information and belief, that during the greater part of the married life of the said William J. Cruikshank, the plaintiff herein, and Maud Cruikshank, said William J. Cruikshank, the plaintiff herein, treated his wife in a cruel and inhuman manner, and that he was in the habit of beating her with instruments of various kinds and with his fists and that he struck her in the face and on the body, and that he on Supreme Court, July, 1900.. [Vol. 32. more than one occasion made threats to kill her, and that in the year 1895 he attempted to carry out his threats made to kill her by seizing her by the throat and choking her. XVI. The defendant further alleges on information and be lief, that during the whole of the time of the continuance of the adulterous intercourse between the said plaintiff herein and the said Martha D. Lowe, the said Martha D. Lowe was well acquainted with the said Maud Cruikshank and knew her to be the wife of said William J. Cruikshank, the plaintiff herein, and that the said Martha D. Lowe was aware that the said William J. Cruikshank, the plaintiff herein, neglected, abused and maltreated his wife as herein alleged, and that the said Martha D. Lowe was aware of the fact that her intimacy with the said plaintiff herein was the cause of the disagreements between the said William J. Cruikshank and his said wife. XVII. The defendant further alleges on information and belief, that several times prior to October 18, 1898, the said Martha D. Lowe was interviewed by said Maud Cruikshank, who at such interviews requested the said Martha D. Lowe to break off her intimacy with the plaintiff herein, and to discontinue the relations that existed between said Martha D. Lowe and the said William J. Cruikshank, the plaintiff herein, but that the said Martha D. Lowe ignored such requests. XVIII. The defendant further alleges on information and belief, that the said Martha D. Lowe, together with the said William J. Cruikshank, is responsible for the unhappiness and subsequent breaking off of the marriage relations between the said Maud Cruikshank and the said William J. Cruikshank, the plaintiff herein. XIX. And the defendant further alleges on information and belief, that the said Martha D. Lowe was the cause of the said William J. Cruikshank, the plaintiff herein, deserting his said wife and was the cause of his cruel and brutal treatment towards her, and the cause of their final separation. XX. The defendant begs leave, for greater certainty, to incorporate and make a part of this amended answer, with like effect as if here fully set forth, the pleadings, testimony, exhibits, the opening and summing up of counsel, the charge and all other papers and proceedings connected with the said trial so had in the County of Kings, commencing on or about the 17th day of Octo Misc.] Supreme Court, July, 1900. ber, 1898, wherein Maud Cruikshank was plaintiff and William J. Cruikshank, the plaintiff herein, was defendant, and will produce the same at the trial of this action. XXI. The defendant further alleges, on information and belief, that at the said trial there was introduced in evidence as exhibit 1, a picture or pictures of the house No. 18 Berkeley Place, Brooklyn, where the plaintiff resided in the summer of 1896. XXII. The defendant further alleges on information and belief, that between the 1st of May, 1896, and the 15th of June, 1896, the said William J. Cruikshank, the plaintiff herein visited the said house of the said Martha D. Lowe at No. 18 Berkeley Place Brooklyn in the night time, and there had adulterous intercourse with the said Martha D. Lowe, at that time being lawfully married to the said Maud Cruikshank. XXIII. The defendant further alleges that the said article, Exhibit 'A' of this amended answer, was and is substantially true. XXIV. Defendant further alleges on information and belief that the said Maud Cruikshank, by her counsel, is now prosecuting an appeal to the Appellate Division of the Supreme Court for the Second Department, from the Judgment and Order entered in the office of the Clerk of this Court, as a result of the trial so had before Mr. Justice Johnson, and a Jury, commencing on the 17th day of October, 1898. For a third, separate and distinct defence to the alleged cause of action set forth in the complaint, and in mitigation of any damages to which the plaintiff might otherwise seem entitled: I. Defendant here repeats and re-alleges each and every one of the allegations, admissions and denials contained in the Second defense of this amended answer with like effect as if here fully set forth. II. The defendant further alleges, on information and belief, that all the facts stated in this defense were known to it prior to the 18th day of October, 1898, and that the said matter or publication complained of, being Exhibit 'A' of this amended answer, was published by the defendant in good faith, and in the public interest, without any malice whatsoever, whether express or implied towards either the plaintiff or any other person, but with the honest and worthy purpose of serving the public, and Supreme Court, July, 1900. [Vol. 32. of supplying proper items of news and current interest, and for no other purpose, and further, in the belief on the part of the defendant and its agents and servants, that the said article or matter complained of was true, and the defendant, in publishing the said matter or article, relied on the matters herein before alleged to have been known to it prior to the date of the said publication. III. Defendant alleges that it now employs and did employ in the month of October, 1898, skilled and competent editors, correspondents, reporters, news collectors and other agents and servants at great cost and expense, and it received the said article Exhibit 'A' of this amended answer, from trustworthy and competent persons employed by it to collect news and items of interest for the public; that the same was transmitted by the aforesaid agents and servants, and was received by the defendant in its regular course of business, and was based upon proper information in the hands of the defendant and its aforesaid agents and servants. IV. The defendant further alleges that all the matters hereinbefore stated, contained in the publication complained of, being Exhibit 'A' of this amended answer, were matters of current interest to the public, and current public news, and as such were published by the defendant without malice towards the plaintiff or any other person. V. The defendant further alleges on information and belief, that the New York Evening Journal, a reputable newspaper published in the City of New York, on the 17th day of October, 1898, published an article of which a true copy is hereto annexed marked 'B,' and made a part of this amended answer. VI. The defendant further alleges that in the making of the publication of Exhibit 'A' complained of in this action, it had a right to and did rely upon the matter contained in Exhibit 'B' in an honest belief that the matter contained in Exhibit 'B' was true. VII. Defendant further alleges on information and belief, that other reputable daily newspapers published in the City of New York, on the 17th day of October, 1898, published articles substantially similar to Exhibits 'A' and 'B' of this amended answer, and that in making the publication of Exhibit 'A' of this amended answer the defendant had a right to and did rely upon the said articles so published in the said daily newspapers pub Misc.] Supreme Court, July, 1900. lished in the City of New York, in the honest belief that the matter contained in the said articles was true. For a fourth, separate and distinct defense to the alleged cause of action in the complaint contained: I. The defendant here repeats and re-alleges each and every of the allegations, denials, and admissions, contained in the second and third defenses of this amended answer, with like effect as if here fully set forth. II. The defendant further alleges that all the matters set forth in Exhibit 'A' of this amended answer were contained substantially and specifically in certain judicial proceedings instituted by Maud Cruikshank against her husband William J. Cruikshank, the plaintiff herein, in the Supreme Court, Kings County, the same being an action for divorce commencing in the month of June, 1896, and the subsequent proceedings had in said action resulting in its being referred to Frederick H. Cooke, Esq., as Referee, and the report of the said Cooke, and the report and decision filed in the office of the Clerk of this Court, deciding that the said William J. Cruikshank, the plaintiff herein, committed adultery with the said Martha D. Lowe, and the subsequent decree entered in the office of the Clerk of this Court dissolving the marriage between the said Maud Cruikshank and the said William J. Cruikshank, the plaintiff herein, and the subsequent proceedings commenced in the month of July, 1897, by the said William J. Cruikshank, the plaintiff herein, to reopen and set aside the said decree, and the amended and supplemental answer served by William J. Cruikshank, the plaintiff herein, and the issues framed by the Court thereon, which resulted in a trial before Mr. Justice Johnson and a jury in Kings county on or about October 17th, 1898, and the matters contained in Exhibit 'A' of this amended answer, and each and every of the facts and matters therein stated was a fair and true report of certain steps taken in or the substance of the said judicial proceedings, and of statements made by witnesses or counsel or other interested parties therein and becoming necessary and material parts of the said judicial proceedings, and that Exhibit 'A' of this amended answer was a fair comment and criticism thereon and a fair comment and criticism of the pleadings and other papers on record in said judicial proceedings, and the defendant alleges that the said matter or publication complained of and the whole thereof being |