Opinion
April 19, 1940.
Appeal from Supreme Court of New York County, McCOOK, J.
Charles Henry of counsel [ W. Howard Fisher with him on the brief; McCauley Henry, attorneys], for the appellants.
Philip Wittenberg, for the respondent.
Present — MARTIN, P.J., UNTERMYER, DORE, COHN and CALLAHAN, JJ.
We agree with the Special Term that, although a small part of the matter alleged in the first separate and complete defense of truth and fair comment may be proper, the defense as presently pleaded does not fully meet the allegation of libel set forth in the complaint. It is fundamental that a plea in justification must be as broad as the charge and set forth the facts on which it is alleged that the charge as made is true. ( Bingham v. Gaynor, 141 App. Div. 301; affd., 203 N.Y. 27, 34.) As the partial defense realleged by reference all of the allegations of the first defense that had been stricken out, the order must be interpreted as striking out both the first defense and the first partial defense as pleaded.
The order, so far as appealed from, should be affirmed, with twenty dollars costs and disbursements to the plaintiff, with leave to defendants to serve an amended answer within twenty days after service of a copy of the order to be entered herein upon payment of said costs.
Order, so far as appealed from, unanimously affirmed, with twenty dollars costs and disbursements, with leave to the defendants to serve an amended answer within twenty days after service of order upon payment of said costs.