Opinion
February, 1933.
Order denying plaintiff's motion to strike out the unnumbered defense in paragraph third and the second partial defense in paragraph fourth of the answer reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to plead over within ten days from the entry of the order herein. The unnumbered defense in paragraph third does not comply with the rule stated in Bingham v. Gaynor ( 203 N.Y. 27, 34). The partial defense in paragraph fourth is likewise insufficient in law in that it alleges no ultimate facts to sustain the conclusion of the pleader. In McDonald v. Press Publishing Co. ( 174 App. Div. 463, 466) a similar partial defense was sustained, but there was included in it allegations of fact, upon which the pleader's conclusion was predicated, that a careful investigation had been made (1) by men who had prior experience in such work and had been relied upon and found to be dependable on prior occasions; (2) that official and unofficial records relating to the publication had been examined; (3) that innumerable interviews had been had with various individuals respecting the subject-matter of the publication. No facts of a like character are present in the partial defense herein. Lazansky, P.J., Kapper, Carswell, Scudder and Davis, JJ., concur.