Dolgorouky v. Daily Mirror, Inc.

248 A.D. 486, 290 N.Y.S. 785, 1936 N.Y. App. Div. LEXIS 6180

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1936
• Status: Published

Opinions

O’Malley, J.

We concur with Mr. Justice McAvoy in so far as the insufficiency of the complete defense is concerned. We disagree with respect to the alleged insufficiency of the partial defense. A partial defense is not required to be as broad as the entire charge.

Only recently it was said by the Court of Appeals in Fleckenstein v. Friedman (266 N. Y. 19, 24): “ Whatever the older cases may have said, there is no doubt now that facts tending but failing to prove the truth of any distinct charge are relevant as bearing on the amount of compensatory damages to be awarded by the jury.”

The facts alleged in the partial defense seem to fall within this rule.

The allegations of the complete defense, though stricken out, are still retained, in so far as they are repeated by reference in the first partial defense.

It follows, therefore, that the order appealed from should be modified by denying the motion to strike out the first partial defense, and as so modified affirmed, with twenty dollars costs and disbursements to the appellants to abide the event, (and with leave to the appellants to plead anew in respect to the complete defense, if they be so advised, within twenty days after service of a copy of the order entered herein.

Martin, P. J., Townley and Glennon, JJ., concur; McAvoy, J.¿ dissents and votes for affirmance.