Steinberg v. Newspaper Enterprises, Inc.

In an action to recover damages for libel, the appeals are (1) from an order which on reargument adhered to the original decision striking out the first partial defense contained in the amended answer and (2) from an order which on reargument adhered to the original decision modifying appellant’s notice to examine respondent before trial. The alleged libel was contained in an article accusing respondent of complicity in a conspiracy to transport $185,000 in stolen jewelry from Miami to New York in 1935. Respondent is described in the article as “ a disbarred lawyer ”, which fact is not disputed. The defense which was struck out, and the part of the notice to examine which was not allowed, relate to respondent’s disbarment. Orders affirmed, with $10 costs and disbursements. The statement that respondent is a disbarred lawyer is not claimed in the complaint to be libelous, and respondent seeks no recovery because of its publication. The partial defense which asserts that this statement is true is therefore insufficient, and examination of respondent to prove the truth of the statement was properly disallowed. In any event, since there is no dispute as to the truth of the statement, examination with respect thereto is not necessary. (Cf. Abell v. Cornwall Ind. Corp., 241 N. Y. 327; Gressman v. Morning Journal Assn., 197 N. Y. 474; Crane v. New York World Tel. Corp., 308 N. Y. 470.) Nolan, P. J., Beldoek, Murphy, Hallinan and Kleinfeld, JJ., concur.