| N.Y. App. Div. | Feb 15, 1915
Plaintiff is a lawyer; defendant is a justice of the Municipal Court. The plaintiff sues upon two causes of action, one for slander and one for libel, alleging that defendant, while sitting on the bench, uttered slanderous words, and wrote a libelous statement concerning plaintiff. Defendant denies both the slander and the libel, and pleads privilege. The order vacating the order for defendant’s examination was made, and is sought to be sustained on the ground that the matters complained of, even if spoken and written by defendant, were absolutely privileged, and that plaintiff cannot successfully sue thereon. This in effect would determine the controversy in defendant’s favor. It is not customary, and, as we think, seldom proper to pass definitely upon a plaintiff’s right to sue on a mere practice motion. Unless a complaint or answer is so bad that no argument can be made in its behalf, a party is entitled to have his rights determined in such a manner that, if the decision be adverse to him, he may review it on appeal as a right and not as a mere matter of discretion. Without expressing any opinion as to the validity of the defense of privilege under the circumstances alleged in the complaint, we think that it was error to vacate wholly the order for examination. If the cause ever goes to trial plaintiff will be compelled to prove affirmatively that defendant spoke and wrote the words complained of. He is entitled to prove this fact by defendant himself. The order appealed from will, therefore, b?i reversed, without costs to either party, and the order for defendant’s examination be so limited as to permit an inquiry only as to the utterance of the alleged slander and libel. Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred. Order reversed, without costs, and order for examination limited as stated in opinion. Order to be settled on notice.