Rathkopf v. Walker , 274 A.D. 1064 ( 1949 )

In an action for libel, order striking from the appealing defendants’ amended answer the first separate defense of justification, the second separate defense of privilege as fair report and comment, and the first partial defense of justification in mitigation of damages, modified to provide that the first separate defense and the second separate defense be struck out as insufficient in law, and that the motion to strike out be otherwise denied. As so modified, the order, insofar as appealed from, is affirmed, without costs. In our opinion the article complained of is libelous per se, and the complaint sufficient in law. (Bennett v. Commercial Advertisers Assn., 230 N. Y. 125, 127.) The defense of justification is insufficient in that its allegations are not as broad as the charges in the article. (Bingham v. Gaynor, 203 N. Y. 27, 34.) The defense of privilege as fair report and comment cannot be sustained. (Campbell v. New York Evening Post, 245 N. Y. 320, 328.) The first partial defense of justification in mitigation of damages is sufficient in law. (Wachter v. Quenzer, 29 N. Y. 547, 551.) Nolan, P. J., Carswell, Johnston, Sneed and MacCrate, JJ., concur.