Hennigan v. Buffalo Courier-Express Co.

— Order affirmed, with costs. All concur, Simons, J. P., not participating. Memorandum: In affirming, we note that although' the third affirmative defense has been stricken, no motion was made to strike the first affirmative defense. The first affirmative defense, if established, will place the burden upon the plaintiff to prove that the libelous statement was made with “actual malice” (New York Times Co. v Sullivan, 376 US 254, 279-280). Special Term properly refused to strike paragraphs 11 to 23 of the complaint. The publications referred to in those paragraphs were not pleaded as separate causes of action; they were properly pleaded “for the purpose of enlarging the scope of [the later libelous article], and making it more strong than it appears on its face.” (Cassidy v Brooklyn *1171Daily Eagle, 138 NY 239, 243.) (Appeal from order of Supreme Court, Erie County, Kuszynski, J. — strike affirmative defense.) Present — Simons, J. P., Callahan, Doerr, Boomer and Moule, JJ.