Hun.] FIFTH DEPARTMENT, MARCH TERM, 1895. freight it was liable to be destroyed. The defendants cannot shelter themselves from the responsibility, under the arrangement with the initial company, that it should repair the cars when their inspector pronounced them defective. A railroad company receiving perishable property for transportation is bound to forward it immediately to its destination. This was their obligation at common law. (Tierney v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 308.) At the time of the decision in that case there was a statute in force imposing that duty (Chap. 140, § 36, Laws of 1850), which was repealed by the Railroad Act (Chap. 565 of 1890), but the common-law obligation still remains. In The Etna Insurance Company v. Wheeler et al. (49 N. Y. 616) the defendants were operating a railroad running east from Ogdensburg. The Northern Transportation Company, operating a line of propellers on the great lakes and connecting with the defendants' road at Ogdensburg, and having a traffic arrangement with the defendants, delivered a quantity of flour at a warehouse in Ogdensburg used in common by the two concerns, the expense of handling being paid in common. Held, that a delivery to this warehouse by the transportation company with notice of the arrival of the flour placed it in the possession of the defendants and imposed upon them the duties and liabilities of a common carrier with reference thereto. A stronger case in this direction is Mills v. The Michigan Central R. R. Co. (45 N. Y. 622). In Livingston v. The N. Y. C. & H. R. R. R. Co. (76 N. Y. 631, 632) the court sustained the submission to the jury by the trial court whether the sending of the way bills to the defendant in a case very much like this in its leading features, did not put upon the defendant the responsibility of taking care of the goods, and seeing that they were forwarded, and whether there was unreasonable delay on the part of the defendant. The same question of fact was submitted to the Justice's Court in this instance. The through way bill was the history of the transit of the freight made up for both railroad companies governing the transit and defining the rights of the connecting corporations with reference to HUN-VOL. LXXXV. 66 FIFTH DEPARTMENT, MARCH TERM, 1895. [Vol. 85. this freight, and upon its receipt by the defendants, it being at the place of connection and subject to the defendants' control, the duty was imposed upon them to receive and transport the freight within reasonable time, considering its character, to the place of destination, and the trial court having found the defendants negligent in this regard, the judgment should be affirmed, with costs. DWIGHT, P. J., LEWIS and BRADLEY, JJ., concurred. EDWARD W. HATCH, Appellant, v. GEORGE E. MATTHEWS and Another, Respondents. Libel-proof of malice · the semblance of a defense not stricken out as irrelevant - bill of particulars of matter in mitigation. In an action brought to recover damages for an alleged libel the general rule is to admit proof of any fact which may possibly bear on the question of malice, and if there is the slightest doubt in the mind of the court whether the fact offered to be proved tends to disprove malice, the evidence should be admitted, and submitted to the jury under proper instructions. Where there is the semblance of a cause of action or a defense set up in a pleading, its sufficiency cannot be determined on a motion to strike it out as redundant or irrelevant. Wherever argument is necessary to show the irrelevancy of a pleading, the court will not strike out the matter objected to. Where the information called for, on an application for a bill of particulars, is such that it would be exceedingly difficult, if not impossible, to specify the particular acts upon which the allegation of the pleading was based; for example, such as might have been manifest by a look, by the tone of the voice, or by an expression or appearance, a bil! of particulars of such matters will not be required. Quare, whether a bill of particulars should be directed of matter pleaded in mitigation of damages, especially where the plaintiff himself is familiar with the facts. Facts which are pleaded in an answer for the purpose of mitigating the damages, claimed in an action for libel, on the ground of provocation induced by a belief that the plaintiff had previously uttered slanderous words, and to that extent for the purpose of rebutting the inference of actual malice, or of reducing the degree of malice with a view of preventing punitive damages, will not be stricken out of the answer as irrelevant. APPEAL by the plaintiff, Edward W. Hatch, from the following portions of an order of the Supreme Court, made at the Erie Special Hun.] FIFTH DEPARTMENT, MARCH TERM, 1895. Term and entered in the office of the clerk of the county of Erie on the 18th day of July, 1894: 1. The part of said order which denies the plaintiff's motion requiring the defendants to separate and number separately the portion of the second defense of their answer herein, beginning with the words: "Second: And for a second and further answer and defense," etc., and ending with the words "plaintiff on the trial of said action or the proceedings connected therewith," both inclusive, and to separate and state and number separately the remaining portion of said second defense begining with the words: "These defendants allege, however, upon their information and belief, that the said plaintiff at the time of the trial,” etc., and ending with the words "toward these defendants and the newspaper published by them," both inclusive. 2. The part of said order which denies the plaintiff's motion asking that the defendants be required to state in what manner, respect and by what speech or conduct the prejudice and bias charged upon the plaintiff in the following allegation in the second defense set forth in said answer were shown or manifested in the discharge of the plaintiff's judicial functions on the trial of the case of Smith v. Matthews, and the proceedings connected therewith, said allegation being as follows: "These defendants allege, however, upon their information and belief, that the said plaintiff at the time of the trial of the said action was and still is personally prejudiced and biased against these defendants, and the said newspaper published by them, and that that prejudice and bias influenced the mind and judgment of said plaintiff in the discharge of his judicial duties, and that it did bias and prejudice said plaintiff in his action in the trial of said action of said Smith against Matthews and the proceedings connected therewith." Also an appeal by the plaintiff from an order made at the Erie Special Term and entered in said clerk's office on the 22d day of October, 1894, denying plaintiff's motion to strike out certain allegations in defendants' amended answer. Simon Fleischmann, for the appellant. Charles B. Wheeler, for the respondents. LEWIS, J.: FIFTH DEPARTMENT, MARCH TERM, 1895. [Vol. 85 This action was brought against the defendants, as the proprietors and publishers of the Buffalo Morning Express, to recover damages for a libelous article published therein concerning the plaintiff. Plaintiff moved the court for an order requiring the defendants to serve an amended answer and separately state and number the matter set up as a second defense, and make the answer more definite in certain particulars. The motion was in part granted and in part denied, and from so much of the order as denied plaintiff's motion an appeal was taken. After service of the amended answer plaintiff moved the court to strike therefrom certain allegations, as irrelevant. The motion was denied. Separate appeal books were made, but the motions were argued together, and may be so considered in disposing of the appeals. The defendant Matthews was interviewed by a reporter of the Buffalo Enquirer, in which paper the interview was first published; it was thereafter reprinted in the Express. The particular matter complained of consists in this statement: "The reason for the malice that Judge HATCH has shown in his personal and judicial functions towards the Express is generally attributed to the fact that the Express prevented him from turning over the Superior Court to the Democratic party in order to gratify his personal ambition to become a judge of the Supreme Court." It is evident from the balance of the article that this had reference to a libel action which had theretofore been tried in the Superior Court of Buffalo, in which one Juliette C. Smith was plaintiff against these defendants. The plaintiff presided at the trial. The article contained an imputation that the plaintiff was actuated by malice towards the defendants upon the said trial. The way or manner in which such malice was manifested was not stated. If actual malice was manifested the inference would be that it was intentional or willful. Malice is defined: "A propensity to inflict injury or suffering; active ill-will." If the word "malice," therefore, be taken in its ordinary popular sense the inference would be that the plaintiff was charged with having acted in a malicious manner, with willful disregard of his duty, and that the defendants used the word in that sense in the article. It was charged in the complaint that the defendants caused these Hun.] FIFTH DEPARTMENT, MARCH TERM, 1895. publications to be made through malice conceived, harbored and manifested by them against the plaintiff, and that they wickedly and maliciously, with intent to injure the plaintiff, caused the publications to be made. Malice in law would be implied, and the want of actual express malice, or malice in fact, would be no justification or excuse, though the absence of it might be used in mitigation of damages. It is alleged in the defendants' answer in mitigation of damages, in substance, that prior to these publications Charles S. Hatch, a brother of the plaintiff, and who was at the time clerk of the court of which the plaintiff was one of the judges, had publicly stated and declared to a reporter upon and one of the writers for the Buffalo Enquirer, a daily newspaper published and having a large circulation in the city of Buffalo, in substance, that "everybody in the city understands why Mr. George E. Matthews and the Express are so bitter against my brother, myself, the Superior Court and the office of clerk of the Superior Court. Every chance which the Express has it assails this court and this office. In this it is traitorous to the Republican party, for the devotion of myself and my brother to the party can be questioned by no one. There is not a true Republican newspaper in this city, and, when the project was first mooted to start a new Republican paper in this city, I said that I would subscribe to it. The reason why Mr. George E. Matthews and the Express are dead set against my brother and myself is because there is a heavy judgment in this court against the Express in the case of Smith v. Matthews. Mr. Matthews thought that the case of Smith v. Matthews should be arranged in such a manner as not to cause any particular trouble and only a small or nominal amount of expense to the Express. Justice did not move that way, however, and a substantial verdict was obtained by the plaintiff against the Express for libel. My brother tried the case, and the Express apparently wanted him to disgrace the dignity of the bench by favoring the Express on the trial. The court did not show favor to the Express; consequently the Express and Mr. Matthews are sore and cannot say things too harsh against this office." It is stated in the answer that the said Charles S. Hatch intended by said statements to charge the defendants and especially Matthews with the corrupt and unlawful attempt to improperly influence the |