and 114 New York State Reporter

ment of the corporation and inheritance tax law: provided, however, that as to real estate in the hands of bona fide purchasers, the transfer tax shall be presumed to be paid and cease to be a lien as against such purchasers after the expiration of six years from the date of accrual."

So far as the present respondent is concerned, no right of any kind to interpose the defense of the bar of the statute was ever acquired by her, and the statute was not retroactive. It merely repealed a statute that she might have used if the state had failed to commence a proceeding within more than a year after the repeal. Treated as a retroactive statute, the law of 1899 was, nevertheless, valid. The statute of limitations does not, after the prescribed period, destroy, discharge, or pay the debt, but it simply bars a remedy thereon. The debt and the obligation to pay the same remain, and the arbitrary bar of the statute alone stands in the way of the creditor seeking to compel payment. The legislature could repeal the statute. of limitations, and then the payment of a debt upon which the right of action was barred at the time of the repeal could be enforced by action, and the constitutional rights of the debtor are not invaded by such legislation. Per Earl, J., in Hulbert v. Clark, 128 N. Y. 295, 28 N. E. 638, 14 L. R. A. 59; Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483; People v. Starkweather, 42 N. Y. Super. Ct. 325, 335. The application is granted, with costs to be taxed. The sum due for tax and penalty will be computed and inserted in the decree, since the interest on the decree will be 6 per cent. only. Application granted, with costs to be taxed.

XAVIER v. OLIVER et al.

(Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1 LIBEL-JUSTIFICATION-IRRITATION BY PLAINTIFF.

In an action for libel, the fact that plaintiff had written and published of defendant or of his newspaper some irritating matters does not justify the publication of a libel concerning plaintiff, and is not pleadable as a full defense.

2. SAME-PARTIAL DEFENSE-MITIGATION OF DAMAGES

Under Code Civ. Proc. § 536, providing that in actions for personal injury the defendant may prove facts, not amounting to a total defense, tending to mitigate or otherwise reduce plaintiff's damages, if set forth in the answer, the defendant, in an action for libel, may allege that the plaintiff had written and published certain irritating matters of defendant or of his newspaper.

Appeal from special term, Westchester county.

Action by Henry F. Xavier against John W. Oliver and another. From a judgment sustaining a demurrer to a defense and overruling a demurrer to a partial defense both parties appeal. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.

Roger M. Sherman, for plaintiff.
James M. Hunt, for defendants.

WOODWARD, J. This is an action for libel. The plaintiff states a cause of action, and the defendants have answered, setting up a defense and a separate and partial defense. To both of these the plaintiff interposes a demurrer. The learned court at special term holds, and properly, we believe, that the matter pleaded as a defense does not in law constitute a defense to the action. The same matter is pleaded as a partial defense, and the court holds that this does contain facts which may be proved in mitigation of damages, under the provisions of section 536 of the Code of Civil Procedure, and overruled the demurrer to the partial defense. Both parties appeal from the interlocutory judgment, the plaintiff urging that both demurrers should have been sustained, the defendants that neither of them should receive the sanction of the court.

The justification in an action for libel must be as broad as the charges (Young v. Fox, 26 App. Div. 261, 267, 49 N. Y. Supp. 634, and authority there cited); and the fact that the plaintiff in this action is alleged to have written and published of the defendant or his newspaper some irritating matters does not, as a matter of law, justify the defendants in publishing a libel concerning the plaintiff. It is, however, proper that these matters should, if pleaded, be placed before the jury in mitigation of damages. Section 536, Code Civ. Proc. The defendants have pleaded the facts surrounding the publication of the alleged libel in mitigation of damages, and they are entitled to an opportunity to prove them upon the trial. The interlocutory judgment appealed from should be affirmed.

Interlocutory judgment affirmed, without costs. All concur.

¶ 2. See Libel and Slander, vol. 32, Cent. Dig. § 164.

80 N.Y.S.-15

and 114 New York State Reporter

HEINRICH v. VAN WRICKLER.

(Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1 REPLEVIN-PREVIOUS DEMAND-SUFFICIENCY

A sufficient demand necessary to support replevin of a chattel held by defendant under a contract of conditional sale is not shown by proof of a demand on third persons not having custody or control of the property, or of a statement by the officer serving the replevin papers, made after breaking a door in accomplishing their service, that he had them.

Appeal from municipal court, borough of Queens, Second district. Action by Frederick W. Heinrich against Jessie Van Wrickler From a judgment for defendant entered on a dismissal of the complaint at the close of plaintiff's evidence, he appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, and HIRSCHBERG, JJ.

William Morris, for appellant.

Fred G. De Witt, for respondent.

PER CURIAM. This is a suit in replevin for the recovery of a piano in the possession of the defendant under a contract of conditional sale. As such possession was lawfully acquired, it was necessary for the plaintiff to prove a demand for the return of the chattel in order to maintain proceedings and an action in replevin. This he failed to do, and the municipal court justice dismissed the complaint on account of this defect in the proof. While there was evidence of a demand, it was of a demand addressed, not to the defendant herself, but to a person or persons not shown to have any custody or control of the property. The so-called demand made by the marshal upon the defendant personally appears to have been nothing more than a statement to the effect that he had replevin papers to replevy the piano, after he had broken in her door in order to gain access to it. The judgment should be affirmed.

Judgment of the municipal court affirmed, with costs.

ROWAN v. WELLS, FARGO & CO.

(Supreme Court, Appellate Division, First Department. February 6, 1903.) 1 CARRIERS OF FREIGHT-EXPRESS COMPANY-LOSS OF Goods by Fire-QUESTION FOR JURY-SUFFICIENCY OF EVIDENCE-FAILURE TO OBJECT.

Evidence, in an action by a consignee of goods against an express company, considered, and held sufficient to warrant submitting to the jury the issues as to shipment and destruction of the goods by fire en route, in view of plaintiff's failure to object either to the evidence or to such submission.

2. SAME-NEGLIGENCE-PRESUMPTION.

Plaintiff was the consignee of goods delivered for transportation to the express company, on condition that the company should not be held liable for any loss or damage by fire unless the goods were specially insured. It was shown that the goods were destroyed by fire en route, but no evidence was offered that the company was in any way responsible

therefor. Held, insufficient to charge the company, no presumption that the company was negligent arising from the mere fact that the fire occurred.

B. SAME FAILURE TO SEARCH DEBRIS.

Where an express company, on receiving a package for transportation, is not informed that it contains gold, the company is not negligent in failing to search the ruins of the express car after a fire in order to re cover the property.

4. SAME CONSIGNMENT OF PACKAGE-FAILURE TO DISCLOSE CONTENTS-LIMITA TION OF LIABILITY.

A package was consigned to an express company for transportation, without disclosure being made that it contained gold. It was stipulated that the company should not be liable for more than $50 on any shipment unless its true value was stated. The package was destroyed en route by fire. It was shown that, had disclosure been made, a greater charge would have been imposed for transportation, and that the package would have been put in a safe, under the care of special messengers. Held that, in the absence of proof of some affirmative act of wrongdoing, the company was entitled to an instruction that the recovery could not exceed $50.

Appeal from trial term, New York county.

Action by Edward Rowan against Wells, Fargo & Co. From a judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ.

Wm. Lloyd Kitchel, for appellant.

J. Delahunty, for respondent.

MCLAUGHLIN, J. On the 20th of November, 1894, the plaintiff delivered to the defendant, an express company, for transportation from New York to San Francisco, a package containing 12 ouncesof gold foil, of the value of $300. The package was sealed, and its contents asked by, but not given to, the defendant. The charge paid for transportation was $1.15, for which a receipt was given, which contained a provision to the effect that the defendant undertook to forward the package upon certain conditions, one of which was that it should "not be held liable ** for any loss or damage by fire, unless specially insured and so noted herein," or that it should not be liable "for an amount exceeding $50 on any shipment, unless its true value is herein stated." The package was not delivered, and subsequently this action was brought by the plaintiff, as assignee, to recover the value thereof. The answer denied liability, and alleged, as an affirmative defense, among others, that the package, without fault or negligence on the part of the defendant, was destroyed by fire, and, as a separate defense, that in no event could the defendant be held liable in an amount exceeding $50.

At the trial the plaintiff offered proof of the delivery of the package to the defendant, its nondelivery in San Francisco, its value, and then rested. The defendant then offered proof, to which no objection was made by the plaintiff, to the effect that the package in question, after it was delivered to the defendant, was shipped in a 14. See Carriers, vol. 9, Cent. Dig. § 665.