Weisberger v. Condon

285 A.D. 827, 137 N.Y.S.2d 838, 1955 N.Y. App. Div. LEXIS 5712

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1955
• Status: Published

Opinion

In an action to recover damages for an alleged libel, plaintiff appeals from an order denying his motion under rule 109 of the Rules of Civil Practice to strike the second complete affirmative defense and the first, second and third partial defenses from the answer of defendant Condon. Order modified by striking therefrom the ordering paragraph and by substituting therefor provisions that said motion is (1) denied with respect to the second complete affirmative defense and (2) granted with respect to the first, second and third partial defenses, with leave to said defendant, if he be so advised, to serve an amended answer within ten days after the entry of the order hereon. As so modified, the order is affirmed, without costs. The three partial defenses in mitigation of damages are defective in that they do not set forth specific facts showing the defendant Condon’s good faith, his honest and justified belief and his lack of malice. (Cf. Meyers v. Huschle Bros., 273 App. Div. 107; Foley v. Press Pub. Co., 226 App. Div. 535, and Abell v. Cornwall Ind. Corp., 241 N. Y. 327.) Nolan, P. J., Wenzel, MacCrate, Schmidt and Beldock, JJ., concur. [See post, p. 894.]