Rathkopf v. Walker

Appellate Division of the Supreme Court of New York

Rathkopf v. Walker

274 A.D. 1064, 85 N.Y.S.2d 351, 1949 N.Y. App. Div. LEXIS 6067

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 17, 1949

StatusPublished

Cited by1 cases

This text of 274 A.D. 1064 (Rathkopf v. Walker) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rathkopf v. Walker, 274 A.D. 1064, 85 N.Y.S.2d 351, 1949 N.Y. App. Div. LEXIS 6067 (N.Y. Ct. App. 1949).

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Opinion

In an action for libel, order striking from the appealing defendants’ amended answer the first separate defense of justification, the second separate defense of privilege as fair report and comment, and the first partial defense of justification in mitigation of damages, modified to provide that the first separate defense and the second separate defense be struck out as insufficient in law, and that the motion to strike out be otherwise denied. As so modified, the order, insofar as appealed from, is affirmed, without costs. In our opinion the article complained of is libelous per se, and the complaint sufficient in law. (Bennett v. Commercial Advertisers Assn., 230 N. Y. 125, 127.) The defense of justification is insufficient in that its allegations are not as broad as the charges in the article. (Bingham v. Gaynor, 203 N. Y. 27, 34.) The defense of privilege as fair report and comment cannot be sustained. (Campbell v. New York Evening Post, 245 N. Y. 320, 328.) The first partial defense of justification in mitigation of damages is sufficient in law. (Wachter v. Quenzer, 29 N. Y. 547, 551.) Nolan, P. J., Carswell, Johnston, Sneed and MacCrate, JJ., concur.

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In an action for libel, order striking from the appealing defendants’ amended answer the first separate defense of justification, the second separate defense of privilege as fair report and comment, and the first partial defense of justification in mitigation of damages, modified to provide that the first separate defense and the second separate defense be struck out as insufficient in law, and that the motion to strike out be otherwise denied. As so modified, the order, insofar as appealed from, is affirmed, without costs. In our opinion the article complained of is libelous per se, and the complaint sufficient in law. (Bennett v. Commercial Advertisers Assn., 230 N. Y. 125, 127.) The defense of justification is insufficient in that its allegations are not as broad as the charges in the article. (Bingham v. Gaynor, 203 N. Y. 27, 34.) The defense of privilege as fair report and comment cannot be sustained. (Campbell v. New York Evening Post, 245 N. Y. 320, 328.) The first partial defense of justification in mitigation of damages is sufficient in law. (Wachter v. Quenzer, 29 N. Y. 547, 551.) Nolan, P. J., Carswell, Johnston, Sneed and MacCrate, JJ., concur.

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Bluebook (online)

274 A.D. 1064, 85 N.Y.S.2d 351, 1949 N.Y. App. Div. LEXIS 6067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rathkopf-v-walker-nyappdiv-1949.

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