I would affirm on the ground that this action for libel is barred by the one-year Statute of Limitions of subdivision 3 of section 51 of the Civil Practice Act (now CPLR 215, subd. 3). A single issue of defendant’s mass publication intended to be incorporated in various Sunday, January 21, 1962, newspapers was released to carriers for shipment to the publishers of said newspapers commencing January 3, 1962 and on January 16, 1962, 98% had been shipped. The prosecution of this action is barred because the defendant, in accordance with trade practice, irrevocably released the offending issue more than one year prior to its commencement. (Gregoire v. G. P. Putnam’s Sons, 298 N. Y. 119; Donato v. Kiendl, N. Y. L. J., July 27, 1948, p. 149, col, 1, affd. 276 App. Div. 1077, mot. for lv. to app. den. 301 N. Y. 814; Hartmann v. Time, Inc., 60 N. Y. S. 2d 209, affd. 271 App. Div. 781.)
Rabin, J. P., Eager and Steuer, JJ., concur with Stevens, J.; McNally, J., dissents and votes to affirm in opinion.
Order and judgment reversed upon the law, with costs to the appellant, defendant’s motion to dismiss the complaint denied and the judgment vacated.