Opinion
January 26, 1942.
Defendant in an action for libel appeals from an order striking from the amended answer a defense of truth and justification. Order, in so far as appealed from, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The motion was made on the ground that the defense is insufficient in law, and was granted on the ground that the defense is not as broad as the charge. The defense pleads justification of each part of the charge, and is, therefore, as broad as the charge. ( Sherman v. International Publications, Inc., 214 App. Div. 437, 444.) For the purposes of the motion, plaintiff admits that he committed income tax frauds; and defendant's reference to him as "this thief" was qualified and explained and, therefore, raised a question of fact for the jury as to the meaning to be given to those words in the circumstances. ( Hayes v. Ball, 72 N.Y. 418, 420; Cafferty v. Southern Tier Publishing Co., 226 id. 87, 93; Morrison v. Smith, 177 id. 366, 369; Seelman, Law of Libel and Slander, ¶ 166, p. 142.) The defense as pleaded is sufficient. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.