
    The Macaulay Company, Respondent, v. Walter Winchell and Daily Mirror, Inc., Appellants.
    First Department,
    April 19, 1940.
    
      Charles Henry of counsel [W. Howard Fisher with him on the brief; McCauley & Henry, attorneys], for the appellants.
    
      Philip Wittenberg, for the respondent.
   Per Curiam.

We agree with the Special Term that, although a small part of the matter alleged in the first separate and complete defense of truth and fair comment may be proper, the defense as presently pleaded does not fully meet the allegation of libel set forth in the complaint. It is fundamental that a plea in justification must be as broad as the charge and set forth the facts on which it is alleged that the charge as made is true. (Bingham v. Gaynor, 141 App. Div. 301; affd., 203 N. Y. 27, 34.) As the partial defense realleged by reference all of the allegations of theS first defense that 'had been stricken out, the order must be interpreted as striking ■out both the first defense and the first partial defense as pleaded.

The order, so far as appealed from, should be affirmed, with twenty dollars costs and disbursements to the plaintiff, with leave to defendants to serve an amended answer within twenty days after service of a copy of the order to be entered herein upon payment of said costs.

Present — Martin, P. J., Untermter, Dore, Cohn and Callahan, JJ.

Order, so far as appealed from, unanimously affirmed, with twenty dollars costs and disbursements, with leave to the defendants to serve an amended answer within twenty days after service of order upon payment of said costs.  