Bridgwood v. Newspaper PM Inc.

276 A.D.2d 858

Opinion

In our opinion the defense that the article was a fair and true report of a judicial, public and official proceeding, privileged under section 337 of the Civil Practice Act, is a defense available to defendants which should not be summarily struck out as insufficient in law. (Baumann v. Newspaper Enterprises, 270 App. Div. 825; Farrell v. New York Evening Post, 167 Misc. 412.) Whether the other matter contained in the article was fair comment is a question for the jury under the facts here presented. (Briarcliff Lodge Hotel v. Citizen-Sentinal Publishers, 260 N. Y. 106, 116; Hoeppner v. Dunkirk Print Co., 254 N. Y. 95, 105; Goodrich v. Woolcott, 3 Cow. 231, 240.) Where, in libel, there is presented the question of identity of the person of whom the article is written and published, that question is one for determination by a jury. (Stokes v. Morning Journal Assn., 66 App. Div. 569, 570, and authorities there cited; Fleckenstein v. Friedman, 266 N. Y. 19, 23; Kehoe v. New York Tribune, 139 Misc. 420, 422, affd. 235 App. Div. 612.) Nolan, P. J., Carswell, Adel, Sneed and Wenzel, JJ., concur. [194 Misc. 750.]