Mencher v. Chesley

194 Misc. 11, 88 N.Y.S.2d 25, 1948 N.Y. Misc. LEXIS 3947

Opinion

Walsh, J.

Plaintiff moves to examine the defendant before trial and for a bill of particulars in the libel action referred to in the accompanying motion to strike out defenses in the answer.

The motion is granted as to items 1 to 7 inclusive, 16, 36 as consented to, 37 to 41, 45 as consented to, but otherwise denied. For the purposes specified in section 296 of the Civil Practice Act defendant shall produce on the examination all relevant books, papers and records.

Items 18 to 23 inclusive and 31 are disallowed for the reason that by these items plaintiff seeks to establish the falsity of the alleged libelous statements. In actions of this character the falsity is presumed and the burden is placed on the defendant to establish the truth of the utterances (Wholesale Clothing Exch. v. Dun & Bradstreet, N. Y. L. J., Sept. 1, 1938, p. 533, col. 4, Noonan, J.).

Items 10 to 15 inclusive, 17, 26 to 30, 43, 44 and 48 relate to what defendant meant, intended to mean, and what he intended the readers of such statement to understand by certain language used in the article, i.e., Exhibit A. Such items should be disallowed (Cashin v. Connolly, N. Y. L. J., Oct. 11, 1939, p. 1078, col. 7, Miller, J.; Walsh v. Winchell, N. Y. L. J., Sept. 18, 1941, col. 4, Garvin, J.). The other items upon which the examination is sought are denied for the reason that they either have been admitted by the pleadings, are improper in form, or seek an examination as to conclusions of law and matters of defense.

Dorros, Inc., v. Dorros Bros. (274 App. Div. 11) does not apply to a tort case. The court at page 12 said they would “ redefine the policy and practice * * * in commercial litigation.”

Plaintiff’s motion for a bill of particulars is granted as to items 1 to 5 inclusive, 7 to 9 inclusive, 11, 15,17, 19, 20, 27 to 33 inclusive, 46 to 49 inclusive, 52, 57, 59 as consented to and 63, but the motion is otherwise denied.

Settle orders.