Opinion
January 6, 1909.
Buchanan, Lawyer Whalen [ Robert E. Whalen of counsel], for the appellant.
D.E. Wing and J.S. L'Amoreaux, for the respondent.
All that has been determined in reference to the second defense is that the facts therein alleged are standing alone insufficient. We are not, however, precluded from considering those facts in connection with the fourth and fifth defenses because in these latter defenses such facts are realleged and made a part thereof.
Whether or not we may take judicial cognizance of what was in the pleader's mind in alleging in the fourth defense that the water of the stream has become changed from primary to secondary uses, it may reasonably be inferred from all the facts set forth in this defense that the water of the stream is and for many years has been polluted by other mills than those of the defendant. If that be so it is quite clear that this constitutes a partial defense to plaintiff's claim for pecuniary damages. And if it is good for any purpose as a partial defense it cannot successfully be attacked by demurrer.
Similarly we think both the fourth and fifth defenses have a bearing on the question of the nature of the equitable relief which may be granted to plaintiff. In determining that question surrounding circumstances may be taken into consideration such as the extent of the injury which plaintiff sustains, the necessity for using the stream by defendant in the manner complained of, the extent to which it is used in the same manner by other parties, the injury which defendant will suffer if an unqualified permanent injunction issues, and the relative injury to the two parties which they will respectively sustain if an injunction be withheld or granted.
The circumstances may be such that a court of equity with its flexible powers will refuse a permanent injunction on condition that defendant takes appropriate steps to prevent or minimize the pollution of the stream. ( Strobel v. Kerr Salt Co., 164 N.Y. 303, 323.)
These partial defenses admit the right of plaintiff to a judgment of some kind in his favor. The province of such a defense is to allege facts which if established will not destroy the complaint but will limit or restrict the extent or quality of the relief granted. It is only from that standpoint that such defense may be attacked by a demurrer as insufficient in law and it is not insufficient as a partial defense when admitting the cause of action it alleges facts which may extenuate or modify the severity of the judgment which otherwise might be rendered against the defendant. The only question on demurrer is whether such defense is sufficient for that limited purpose. (Code Civ. Proc. § 508.)
Whether the judgment should in such manner properly be affected depends on the facts as they appear at the trial, and on the relation of the different facts to each other. The trial court also has considerable discretion as to the effect which shall be given to such facts. We are now dealing simply with the question of pleading and from that standpoint think it was proper for the defendant by this form of defense which is authorized by section 508 of the Code of Civil Procedure to inform in advance the court and the opposing party of the facts it would rely on at the trial in seeking to minimize or extenuate the form of judgment which should be rendered. This view of the practice seems also to have been taken in Straus v. American Publishers' Assn. ( 103 App. Div. 277), although that case went further and decided that such a defense need not be pleaded as a partial, but might be pleaded as an entire defense, a question which is not here involved.
The interlocutory judgment should be affirmed so far as appealed from, with costs.
All concurred.
Interlocutory judgment so far as appealed from affirmed, with costs.