From Casetext: Smarter Legal Research

Weisberger v. Condon

Appellate Division of the Supreme Court of New York, Second Department
Jan 17, 1955
285 App. Div. 827 (N.Y. App. Div. 1955)

Opinion

January 17, 1955.


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.]


Summaries of

Weisberger v. Condon

Appellate Division of the Supreme Court of New York, Second Department
Jan 17, 1955
285 App. Div. 827 (N.Y. App. Div. 1955)
Case details for

Weisberger v. Condon

Case Details

Full title:MORRIS WEISBERGER, Appellant, v. JOHN CONDON, Respondent, et al., Defendant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 17, 1955

Citations

285 App. Div. 827 (N.Y. App. Div. 1955)

Citing Cases

Cheatum v. Wehle

This mode of "rolled-up" plea is sanctioned in libel and slander suits even though the complete defense be…

Aacon Contr. Co. v. Herrmann

In 1931 the Appellate Division, Third Department, in Goodrow v. New York American ( 233 App. Div. 37) so…