Margaret R. Bounds v. Mutual Omaha Insurance Company Et Al. Book Reviews

Margaret R. Bounds v. Mutual Omaha Insurance Company Et Al. by Supreme Court of New York Book Summary

[37 A.D.2d 1008 Page 1008] Appeal from an order of the Supreme Court at Special Term entered February 18, 1971 in Albany County, which granted defendants'
motion to vacate plaintiff's demand for a bill of particulars. Appellant, the insured under a contract of insurance for sickness
benefits, allegedly became ill and filed a written notice of claim for benefits under the policy. Upon refusal to tender payments
allegedly due, she sued both Mutual of Omaha and its local agent, J. J. Kearns Agency. In her second and third causes of action,
appellant alleges that Kearns uttered libelous and defamatory statements about her. Respondent Kearns' answer contained, in
addition to a general denial, the affirmative defenses of truth and privilege. Appellant thereafter served a demand for a
bill of particulars concerning the two affirmative defenses, whereupon respondent Kearns moved for an order vacating the demand.
Appellant appeals from the order granting this motion. The scope of a bill of particulars is limited to matters on which the
requested party has the burden of proof (3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3041.10). It must therefore be determined
who bears the burden of proof as to the affirmative defenses of truth and privilege. Truth is an affirmative defense which
must be pleaded and proved and therefore the burden of proof is upon the defendant (Prosser, Torts [4th ed.], § 116). As to
the burden of proof regarding the defense of privilege, it is equally well settled that the defendant bears the burden of
proof as to the allegation (Ostrowe v. Lee, 256 N. Y. 36, 41; Prosser Torts [3d ed.], § 110; 2 Seelman, Law of Libel and Slander
in New York, par.

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