Wiley v. Bass

272 A.D.2d 926

Opinion

Action to recover damages for alleged libel. Order granting motion of plaintiff to require defendant to state separately and number defenses contained in the " Fifth ”, “ Sixth ” and “ Seventh ” paragraphs of the answer reversed on the law, with $10 costs and disbursements, and the motion denied, with $10 costs. The answer contains a defense of justification, which is realleged as a partial defense in mitigation of damages, in accordance with settled practice. (Flechenstein v. Friedman, 266 N. Y. 19; Wackier v. Quenzer, 29 N. Y. 547, 551.) Matter peculiar to a defense of justification is not so inextricably commingled with matter peculiar to a defense in mitigation of damages as to warrant the granting of the motion. Reiteration of denials may be disregarded. (Levine v. Hogan-Levine Co., 200 App. Div. 487, 489.) Hagarty, Acting P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.