This is an action of libel. The complaint sets forth that the defendant is the editor and proprietor of a newspaper, the Sidney Record; that it published an article therein, signed by one Pudney, which was defamatory of the plaintiff. The article is set forth in the complaint. It charges, among other things, that “ illegal, unlawful, dishonest and discreditable procedure ” had occurred in the administration of the affairs of the village of Sidney; that Sidney had been “ defrauded out of taxpayers’ money; ” that “ graft had entered in; ” that there had been a “ conspiracy formed for illegal and unlawful handling and use and taking of Sidney’s moneys; ” that when the facts were out “ there may be more than one to answer before justice; ” that the writer’s friends were saying: “ It smells of oil. Sounds like Teapot Dome; ” that the plaintiff, B. C. Broadfoot, was the leader in all this; that Broadfoot “ took from Sidney village treasury $6,327.00, illegally, unlawfully, on February 7th.” The defendant set up in its amended answer two defenses in mitigation of damages, numbered “ second ” and “ third.” A motion to strike out these defenses was granted and this appeal was taken.
The “ second ” defense alleges that the article was published without malice; that, prior to the publication of the article, the board of trustees of the village of Sidney had caused to be borrowed from the People’s National Bank, in anticipation of taxes, the sum of $6,000; that the plaintiff was the cashier of such bank; that the borrowing was unlawful for the reason that the amount was in excess of the amount of taxes of the fiscal year then remaining unpaid; that Pudney, the author of the article, was afterwards *327elected village president; that he proposed to the board that an audit be made of the village funds; that the board declined to make an investigation; that in this it was supported by the plaintiff; that on February 7, 1924, the plaintiff, acting as cashier of the People’s National Bank, unlawfully charged off the $6,000 note against deposits of the village in such bank; that these matters were the subject of discussion in a village election in which Pudney sought re-election; that the plaintiff was active in supporting the opposition candidate; that “ the said words complained of referred to the said transaction of illegal borrowing by said village and illegal payment of said note, as well as to the issues in the campaign preceding the village election; ’’ that the “ said issues were known to the public and that the said words complained of and published by the defendant were generally and publicly understood to refer to said matters." It is evident that the matters set forth did not tend to establish the truth of the charges that the plaintiff had been a participant in “ dishonest ” procedure “ where graft had entered in; ” that he had been guilty of acts which would cause him “ to answer before justice;" that the thing, of which he is alleged in the answer to have been guilty, “ smells of oil. Sounds like Teapot Dome." Accordingly, on a former appeal, we held that the matters set forth did not constitute a valid defense in justification. (214 App. Div. 826.) We think, however, that these matters are provable as partial defenses in mitigation of damages. As now alleged, they tend to show that the author of the article was not malicious to the extent of fabricating out of whole cloth every fact set up. It appears that his fault, if the facts alleged be true, was not so much in making a false statement as in characterizing the facts set up as indicative of graft, dishonesty and criminality on the part of the plaintiff. In particular the defensive matter explains the following charge: “ The leader in all this, B. C. Broadfoot, took from Sidney village treasury $6,327.00, illegally, unlawfully, on February 7th." That statement, standing alone, might be held to impute that the plaintiff had been guilty of larceny. The facts set up in the answer tend to show that the defendant intended to assert, nbt that the plaintiff stole moneys of the village, but that he illegally charged off a note, held by the bank of which he was cashier, against the village deposits. It directly tends to minimize the inference that a maliciously unwarranted charge had been made.
The “ third" defense sets up that the words complained of were published at the request of B. E. Pudney; that said Pudney stated to the defendant that he desired such publication in order bo obtain publicity for the issues of the campaign then under way *328for the election of a village president, for which office said Pudney was a candidate; that the defendant agreed to publish the same only upon condition that the said Pudney should personally vouch for the truth of the matters published; that the said Pudney assented thereto; that the defendant relied upon the assurances of Pudney and believed that the matter so published was true. Self-evidently this was matter provable in mitigation of damages. The fact that Pudney assured the defendant that the facts set up were true and that the defendant believed them to be true unquestionably tends to establish that the publication was made by the defendant without express malice on his part. We think that the matters set up in the defenses numbered “ second ” and “ third ” were properly alleged as partial defenses in mitigation of damages.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied.
All concur.
Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.