
    Shepard Barclay, Respondent, v. Ely Culbertson and Another, Appellants.
    First Department,
    December 28, 1934.
    
      
      Ernest P. Seelman of counsel [Alfonse F. Spiegel with him on the brief; Ralph J. Leibenderfer, attorney], for. the appellants.
    
      Edward B. Towns of counsel [Graef & Towns, attorneys], for the respondent.
   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.  