Zirn v. Bradley , 270 A.D. 829 ( 1946 )

In an action to recover damages for alleged libel, defendants appeal from two orders. Resettled order adjourning trial to March 1, 1946, affirmed, with $10 costs and disbursements. The motion was addressed to the sound discretion of the trial court, and it is only in exceptional instances that the exercise of discretion with respect to such matters will be reviewed. In this instance we see no abuse of discretion. Order requiring defendants to serve an amended answer separately stating and numbering their affirmative defenses, modified on the law by striking out the provisions of the ordering paragraph following the words “which will” and by substituting in place thereof the following: “ Separately state and number as separate and distinct complete defenses of justification and of justification and privilege; and as separate and distinct partial defenses in mitigation or reduction of damages, the allegations contained in paragraphs ‘ Ninth ’ to ‘ Fifty-ninth ’ inclusive, now contained in the first and second defenses pleaded, so that each such allegation shall be pleaded under the appropriate type of defense.” As so modified, the order is affirmed, without costs. We see no abuse of discretion by the Special Term in directing that the complete and partial defenses be pleaded separately. Permitting tiie combination in a single defense of matters tending to prove justification and qualified privilege, will conform with our previous decisions in this action (Zirn V. Bradley, 268 App. Div. 1063; 269 App. Div. 961). Partial defenses need not be pleaded separately in justification, and in mitigation of. damages. A plain statement of the facts relied upon, pleaded expressly as a partial defense, is sufficient. So pleaded, the matter may be utilized for any proper purpose. (Fleckenstein v. Friedman, 266 N. Y. 19.) Lewis, P. J., Carswell, Johnston, Adel and Nolan, JJ., concur. [See post, pp. 897, 951.]