Kendall v. Newsday, Inc.

In an action to recover damages for libel, respondent moved under rules 103 and 109 of the Rules of Civil Practice to strike out as sham and as insufficient in law, respectively, an affirmative defense which pleaded that the publication complained of was a fair and true report of a judicial proceeding in an action pending in the Supreme Court, Suffolk County, between respondent and his wife. The motion under rule 103 was denied, and the motion under rule 109 was granted. The appeal is from the order entered thereon, insofar as it strikes out the defense as insufficient in law. Order reversed, without costs, and motion denied. The insufficiency of the defense, as stated in the affidavits *865submitted on the motion under rule 103, does not appear on the face of the pleading. Rolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.