This аction was instituted by the plaintiff against the owners of the daily newspaper known as the Evening Sun and also against the United Press Associations, an organization engaged in the business of dissemination of news to newspapers and periodicals.
In his first cause of action against the defendant Sun he alleges that it wrongfully, maliciously and wickedly caused to be composed, published and circulated of and cоncerning him in the “Wall Street Special ” edition of said paper a false, libelous and defamatory matter and attaches to the complaint and makes part thereof the said article as published. Plaintiff claims that the defendant Sun charged and the readers of the papers understood it as a chаrge that the plaintiff was suspected as a spy, meaning a person guilty of espionage, a universal crime in all the nations of the world, and that the plaintiff was charged with the crime of spying or espionage in Manchukuo by the government of that country and was suspected as a spy in China and Manchukuo and that governmental officials in high office and position and great responsibility in the areas in which the expedition headed by the plaintiff had been engaged in .its work had charged the plaintiff with spying and had protested against the plaintiff to the Department of Agriculture of the United States; and further charged that the conduct of the plaintiff in the countries in which he and the expedition of which he was the leader traveled was unprecedented and that the plaintiff had wrongfully intermeddled with, interfered with and took part in and became entangled in the politics of China and Manchukuo and had come to be regarded as a spy by the officials of that country and had an evil reputation in Manchukuo and that the government of Manchukuo would arrest him and either place him in jail or deport him because he had been guilty of the crime of espionage. The plaintiff further claims that the defendant charged in its article that the government of the United States had disсharged the plaintiff from his work and contract with the Department of Agriculture for cause and because of protests received by the officials of thе Department of Agriculture from officials in China and Manchukuo and that the plaintiff was engaged in espionage and wrongfully engaged in the politics of those countries and because the plaintiff was regarded as a spy by the officials of Man
The charge in the second cause of action is prаctically identical with the charge in the first cause of action and is based upon the fact that the defendant Sun republished the article with some additions in аnother edition of the Sun known as the Five Star Final on the same date, that is, the 30th day of January, 1936. He claims that by reason of these publications he has been greatly injured in his credit and reputation and that the said publications have exposed him to public hatred, shame, obloquy, odium, contempt, ridicule, aversion, оstracism, degradation and disgrace and has induced in the minds of right-thinking persons an evil opinion concerning him and that his name was removed therefor from a largе building at One Hundred and Third street and Riverside drive which up to that time had been known as the Roerich Museum and which name had been given to the building as a monument and token of honor and respect to the plaintiff and the plaintiff’s achievements.
In his cause of action against the defendant United Press Associations he makes thе same claim in the first cause of action alleged against the Sun and claims that the articles were published and transmitted to various newspapers with the intеntion they should be published by these newspapers and journals throughout the world and that those newspapers and journals did publish the matter as sent by the defendant Unitеd Press.
The defendants in their answer admit the publication and admit the claim of the plaintiff to his various activities as an artist, etc., but deny any libel and deny any malicious publication of same. In addition they set up several defenses, the first defense being an allegation of truth. This defense has not been attacked by the plaintiff in the present motion but in addition to this defense the defendants have interposed a separate distinct defense consisting of forty-eight pages in which is set fоrth the entire history and career of the plaintiff from the time of his birth to the time of the printing of the alleged libel. They have also set up the same facts as а partial defense and in the separate and partial defense in the mitigation of damages they have set forth the same allegations with the additionаl allegation that prior to the publication of the articles and the matter contained in the amended complaint the accounts of matters of facts therein stated were published in newspapers and other publications in the city of New York and elsewhere and that these facts were known in substanсe to the defendants prior to the publication of the articles and matters complained
The second separate and complete defense is what is now commonly known as the “ rolled up defense.” Its purpose is to set forth facts which if proven at the trial would establish the truth of all the statements of fact and the fáirness of the comments contained in the publication. The pleading of such a defense has been approved in this jurisdiction. (Foley v. Press Publishing Co.,