I dissent for the reasons given by Mr. Justice Bischoee in his opinion at Special Term.*
Order reversed, with ten dollars costs and disbursements,' and motion denied, with ten dollars costs.
The following is the opinion delivered by Bischoee, J., at Special Term: Bischoee, J.:
The alleged libel consists of the charge that the Court of Errors of New Jersey made a certain decision affecting the plaintiff. As a defense of justification, the defendant sets forth facts tending to show that while the court did not decide the case,-but merely remitted the facts for decision to the court below, the ultimate decision may probably be to the effect of the words published. Any such issue as that tendered by these allegations is not relevant to the action for libel, and the matter alleged could not serve as an aid to an attempted defense of justification. The libel, in effect, charges the plaintiff with having been convicted of extortionate and unprofessional conduct, and with having been directed to *75make restitution under penalty of disbarment. Certainly the averment of facts tending to show that the plaintiff was guilty of conduct which ought to have led to this result is not a justification, i. e., pleading the truth of the matter published. The justification must be as broad as the charge, and, within the authorities, the matter here pleaded is no justification. {Buff v. Bennett, 6 N. T. 337; Skinner v. Powers, 1 Wend. 452; Kirwan v. Bennan, 2 Hud. & Br. 628; Starkie Sian. & Lib. [3d Am. ed.] § 480.) So much of the separate? defense as is made the subject of this motion must be viewed as irrelevant to the defense sought to be pleaded, i. e., justification, and the motion is, therefore, granted, with ten dollars costs.