H. J. B. Theatre Corp. v. Van Ree Publishing Corp. , 159 Misc. 38 ( 1936 )

Cupe, J.

Motion to strike out the first separate defense. The action is for libel. Plaintiff conducts a theatre and distributes cash to holders of lucky numbers each week. If the holder of the lucky number drawn is not in the theatre at the time the number is announced, the drawing is repeated at a later date and the prize ■increased by including the sum or sums unclaimed on other occasions. Defendant conducts a newspaper, and it published in a personal column the following: “ John Hoss of 101-24 113th Street won a hundred bucks from a 101st Avenue movie house recently — seems to me the theatre advertised that $150 was to be given away.” Plaintiff alleges that John Hoss won and received $150 and that the publication injured its reputation by stating that he received only $100. This motion to strike out a defense searches the complaint, for a defendant is not called upon to answer a bad complaint. An examination of the plaintiff’s cause of action reveals that it was conducting an ordinary lottery, which is a criminal offense.

The complaint must be dismissed. Motion to strike out the defense denied. Enter order dismissing the complaint.