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Barclay v. Culbertson

Shepard Barclay v. Ely Culbertson and Another

Barclay v. Culbertson, 243 A.D. 95 (1934)
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Court
Appellate Division of the Supreme Court of the State of New York · State Appellate Courts
Decided
December 28, 1934
Citations
243 A.D. 95276 N.Y.S. 3801934 N.Y. App. Div. LEXIS 5494

Opinion of the Court

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Per Curiam.

We are of opinion that the fourth complete defense and the fifth partial defense are sufficient and that the order appealed from striking out these defenses should be modified accordingly. The fourth defense is a plea of fair comment, in which the defendants allege that the facts contained in the article which is claimed to be libelous are true and that the conclusions or deductions from these facts constitute fair comment, expressed without malice, concerning the plaintiff’s qualifications as a critic of the game of bridge and concerning the article theretofore published by him. Such a defense is the “ rolled-up plea ” which was sustained by this court in Foley v. Press Publishing Co. ( 226 App. Div. 535 ). The fifth defense contains the same allegations pleaded as a partial defense. It is sufficient for the reasons already stated and as a partial defense falls within the rule recently applied by the Court of Appeals in Fleckenstein v. Friedman ( 266 N. Y. 19 ).

The order so far as appealed from should be modified by denying the motion to strike out the fourth and fifth defenses, and as so modified affirmed, with twenty dollars costs and disbursements to the appellants.

Present — Finch, P. J., Merrell, Townley, Glennon and Untermyer, JJ.

Order so far as appealed from modified by denying motion to strike out the fourth and fifth defenses, and as so modified affirmed, with twenty dollars costs and disbursements to the appellants.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1947: 11948: 119472026peak 1947 · 1

Relies on it most ⓘ

  1. Mencher v. Chesley193 Misc. 829 (N.Y. Sup. Ct. 1948)
  2. Klein v. Biben188 Misc. 681 (N.Y. Sup. Ct. 1947)

Most recent

  1. Mencher v. Chesley193 Misc. 829 (N.Y. Sup. Ct. 1948)
  2. Klein v. Biben188 Misc. 681 (N.Y. Sup. Ct. 1947)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Fleckenstein v. Friedman, 193 N.E. 537 (N.Y. 1934) 106
Foley v. Press Publ'g Co., 226 A.D. 535 (1929) 54

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