By the Court.
Daly, J.The effect of the change made by the Code is, that when the defendant pleads a justification, but fails to prove it, he shall not be precluded from giving evidence in mitigation, provided he has set up in his answer the facts and circumstances on which he means to rely in mitigation.
The gravamen of the libel set out in the complaint is, that the plaintiffs were engaged in a fraudulent attempt to influence the decision of the Supreme Court in the matter of the Buss pavement. That Buss had carried common councils for job after job, year after year, and that his outfits had been so expensive that his income and double profit had scarcely made up the cost of these outfits. It is difficult to get at the precise charge in the publication without the aid of the inuendoes made use of in the complaint, to show its intent or true meaning; and the substance of the inuendoes is, that the defendants intended it should be believed that the plaintiffs had been accustomed to pay the common council bribes for job after job, year after year, and that the plaintiffs *646were engaged in a fraudulent attempt to influence the decision of the Supreme Court.
The matter set up in mitigation of damages is in effect that the plaintiffs had entered into a contract with the common council for the pavement of the Bowery, for which they would obtain excessive profits, more than one half of the actual cost. That divers persons had offered to do the work in as good a manner as the plaintiffs for a large per cent, less, and give security. That the contract was made by the common council, though the Harlem Railroad Company were under obligations to keep the Bowery in repair. That by the plaintiffs’ contract the pavement in part of the Bowery, which had been but recently laid down, was to be taken up and donated to them. That they pretended to have a patent right for the peculiar pavement contracted for, but had not. That they did not execute their previous contract for the pavement of Broadway in good faith; and generally the defendants propose to give in evidence the wasteful and improper conduct of the common council, and the disregard of the public interest by which the public taxes were inordinately and unnecessarily increased. Proceedings in public meetings in condemnation of the conduct of the common council, were also alleged.
This may all have been proper matter for the defendants to notice as public journalists; but it furnishes no extenuation for the specific charge made in the publication in question. It is too remote and disconnected with the substantive matters charged upon the plaintiffs, and could not be received in mitigation of the charges.
Order affirmed.