48 F.2d 571 | 2d Cir. | 1931
Appellant is an attorney at law, and sued for damages, alleging he was libeled by reason of allegations contained in a complaint filed to set aside an order of settlement and discontinuance, of- an aetion, wherein he was named as defendant, which discontinuance was entered December 24, 1924, in a cause involving the appellee Beatrice P. Trenkman, appellee Henry M. T. Beekman appearing as attorney. The basis of the suit-to set aside the discontinuance was duress-The suit, which was compromised and discontinued, was a litigation over the disposition of the estate of William E. Smith. It. was claimed that Smith was induced by fraud and force to marry one Clair Smith; that he was in an impaired mental condition; that he- executed a last will and testament which, was obtained by fraud and undue influence;, that deeds, conveyances, and assignments were made which were also fraudulent and the-suit sought to enjoin the defendants therein named from transferring, conveying, or otherwise disposing of the property. Appellant is named as a party defendant in that action. The case was compromised by payment of a substantial sum of money, and the aetiondiscontinued as stated. The twentieth paragraph of the complaint, served in the action-to- set aside the settlement and discontinuance, contained the following:
“That since said settlement, the-plaintiff has obtained evidence which leads her to believe, and she alleges on information and belief, that the death of said William E. Smith was brought about by the defendants, pursuant to their fraudulent plan and conspiracy hereinabove set forth.”
The present complaint was dismissed on-motion. For the purpose of testing the sufficiency of this complaint, the appellees are deemed to have conceded the truth of the allegations thereof which, of course, allege the falsity of the statements contained in the twentieth paragraph charging the appellant, in substance, with causing the death of William E. Smith.
That the allegations are libelous and actionable, unless privileged, admits of little doubt, for they in effect charge the defendant with crime. Morrison v. Smith, 177 N. Y. 366, 69 N. E. 725; Krug v. Pitass, 162 N. Y. 154, 56. N. E. 526, 76 Am. St. Rep. 317; O’Connell v. Press Publishing Co., 214 N. Y. 352, 108 N. E. 556. The cause of death of William E. Smith and.how it.was brought about as alleged in the complaint, was not material or relevant to the question of the right to vacate the discontinuance and settlement. This aetion to vacate the discontinuance was instituted four years after the order of discontinuance was entered upon stip
King v. McKissick, 126 F. 215 (C. C. Dist. Nevada), involved a petition to perpetuate testimony which alleged that the adverse claim was being made because of the false, fraudulent, and malicious representations of one E. D. King to the claimants. This was held not privileged, as it was of no consequence why the claim was put forth. See, also, Potter v. Troy, 175 F. 128 (C. C. S. D. N. Y.). The rule was stated in Harlow v. Carroll, 6 App. D. C. 128, 139; that the “matter, to which the privilege does not extend, must be so palpably wanting in relation to the subject-matter of controversy as that no reasonable man can doubt its irrelevancy and impropriety.”
Here the issue presented by the pleadings in the suit to set aside the compromise and discontinuance was the claim to rescind because the compromise was procured by fraud. The murder of Smith was not relevant to that issue. It is true that in the bill the vacation of probate is also asked for, but that was a matter for the Surrogate’s Court; the state Supreme Court not having jurisdiction. Moreover, such a cause of action would not be against this appellant, but against the legatee. The rule is stated in Andrews v. Gardiner, 224 N. Y. 440, 445, 121 N. E. 341, 2 A. L. R. 1371, that counsel are privileged with respect to any statements, oral or written, made in judicial proceedings and pertinent thereto, and that in England the im-° munity is broader. There the privilege exists whether the statements are relevant or not, but the American rule is that the privilege is lost if the libel is irrelevant. Youmans v. Smith, 153 N. Y. 214, 47 N. E. 265; Moore v. Manufacturers’ Nat. Bank, supra; McLaughlin v. Cowley, 127 Mass. 316; Barnett v. Loud, 226 Mass. 447, 115 N. E. 767;
Order and judgment reversed.