White v. Barry (260 A.D. 910, 1940)

Present — Martin, P. J., O’Malley, Untermyer, Dore and Cohn, JJ.; Martin, P. J., and Dore, J., dissent in part; dissenting opinion by Martin, P. J.

Martin, P. J.

(dissenting in part). I dissent from the affirmance of the order appealed from in so far as it strikes out the second, third and fourth counterclaims. These counterclaims should be allowed to stand. In view of the extrinsic facts alleged, it is for a jury to say whether plaintiff intended to charge defendant with adultery with plaintiff’s wife. (Seelman, The Law of Libel and Slander, chap. 5, p. 634, et seq.; Riley v. Gordon, 192 App, Div. 443.) It may be that those who heard the statements made by plaintiff were of the opinion that plaintiff intended to infer that the relations between defendant and plaintiff’s wife were not purely platonic or entirely professional.

Dore, J., concurs with Martin, P. J.