Regan v. News Syndicate Co. , 248 A.D. 639 ( 1936 )

Order of December 23, 1935, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order of February 26, 1936, in so far as an appeal is taken therefrom, reversed on the law, without costs, and motion granted, without costs, with leave to defendant to serve a further amended answer within ten days from the entry of the order hereon, if so advised. The questions arise in respect to the partial defense in an answer in a libel action in which certain paragraphs were struck out by the first motion; and the motion to reincorporate them in a second amended answer was denied. If the motion had been on the ground that the answer did not contain a plain and concise statement of facts, as provided by section 241 of the Civil Practice Act, and that it was redundant and contained evidence, the motion might properly have been granted. But it was granted on the ground that the defense set up was not proper in mitigation of damages. With this conclusion we disagree. (Civ. Prac. Act, §§ 338, 339; Fleckenstein v. Friedman, 266 N. Y. 19, 24, 25.) Under the allegations in the complaint the defendant is entitled to set up in its answer, in a plain and concise manner, facts showing the truth of the principal part of the article complained of in mitigation of compensatory or punitive damages. Lazansky, P. J., Young, Hagarty, Davis and Johnston, JJ., concur.