Opinion
February 5, 1937.
In an action for libel, a plea by the defendant of privilege upon the ground that the publication is a fair and true report of a judicial proceeding and published without actual malice is good as against a motion to strike out, even though the report is published through the efforts or at the suggestion of the pleader. ( Lewis v. Chemical Foundation, Inc., 262 N.Y. 489; Robinson v. Battle, 148 App. Div. 230.) Where a complaint alleges that such libel was also published and read in Massachusetts. a plea of the Statute of Limitations of that State is good. To make section 13, Civil Practice Act, applicable it will be necessary for plaintiff to show that he was a resident of this State at the time of the publication of the libel in Massachusetts. ( Whiting v. Miller, 188 App. Div. 825.) While the allegations of the fourth defense are technically not accurate, it is clear that the pleader intended to say "at the times mentioned in the complaint." Order in so far as it denies the motion to strike out the first and fourth defenses affirmed, with ten dollars costs and disbursements. Appeal from order denying plaintiff's motion for a reargument dismissed, without costs. Orders denying motions for reargument are not appealable. Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur.