Carlson v. Hillman Periodicals, Inc.

3 A.D.2d 987 | N.Y. App. Div. | 1957

The complaint in this action rests in libel. It complains of a libel by picture rather than by words. The first separate defense pleads a consent to the publication of the picture complained of and a release to the defendant from any liability in consequence thereof. It is alleged that such release was given for due consideration. The court at Special Term struck that defense for legal insufficiency. We believe it should be permitted to stand. The document alleged to be a consent and release is annexed to the answer and therefore, in determining whether the first affirmative defense is sufficient, we must look to the document itself. The so-called “ consent and release” gives the defendant the right to publish a photograph of the plaintiff in a manner wMeh is “ composite or distorted in character, or form Exactly what that means or what the defendant may do pursuant to such consent cannot be determined from the document itself. It may very well be that the parties intended by that document that the defendant might do exactly what is complained of by the plaintiff. In any event the document itself does not preclude such an interpretation. It is ambiguous and being so, testimony may be received in aid of its construction. Without the aid of such testimony, we may not say that the document does not constitute a defense. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. Concur — Breitel, J. P., Rabin, Frank, Valente and McNally, JJ.