Wilk v. Andrea Radio Corp. , 13 A.D.2d 745 ( 1961 )

Order, entered on March 16, 1960, granting plaintiffs' motion to dismiss eight complete and partial separate defenses, unanimously modified, on the law, with $20 costs and disbursements to respondents, to the extent of reinstating the eighth separate and partial affirmative defense, and is otherwise affirmed. The eighth defense pleads matter indicating lack of malice or intent to injure plaintiffs and may therefore be asserted in mitigation of the exemplary damages sought by plaintiffs. Since defendants have been granted permission to serve an amended answer, they may plead in answer to the second cause of action the applicable law of the foreign States in which the advertisement was allegedly circulated (Civ. Prae. Act, § 391). Concur — Botein, P. J., Rabin, Valente, McNally and Eager, JJ.