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  5. 25 N.Y.2d 943 (1969)
 

COLE FISHER ROGOW, INC. v. CARL ALLY, INC.

25 N.Y.2d 943 (1969)

Cole Fisher Rogow, Inc., Appellant, v. Carl Ally, Inc., et al., Respondents, et al., Defendants.

Court of Appeals of the State of New York.

Decided October 9, 1969.

Attorney(s) appearing for the Case

Max Shamis and George Charak for appellant.

Carleton G. Eldridge, Jr. and Timothy K. Hart for Carl Ally, Inc., and others, respondents.

Peter F. Nadel and Ambrose Doskow for Gilbert Advertising Agency, Inc., and other respondents.

Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur.

MEMORANDUM.

The order of the Appellate Division should be affirmed with costs. The advertisement, which forms the predicate for the charge of defamation, constitutes protected fair comment under the common law. (See, e.g., Foley v. Press Pub. Co., 226 App. Div. 535.) It is true, as the plaintiff contends, that proof of malice would defeat that defense. However, treating the...

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