14 N.Y.S. 608 | N.Y. Sup. Ct. | 1891
This is an appeal from a judgment on verdict and from an order denying a new trial. The action is for slander. The complaint alleges that the defendant, about the 7th of December, spoke slanderous words of the plaintiff, setting them forth, and that on the 12th of December he reiterated them. The answer substantially admits the speaking of the words on December 7th, and in regard to the reiteration on December 12th avers that it was made while giving testimony as a witness in an investigation made by the common council of Amsterdam. On the trial the plaintiff relied on the admission of the answer. He was a witness on his own behalf, and proved the circumstances under which the reiteration was made substantially as stated in the answer. Testimony to establish the truth of the charges contained in the slanderous words was given by defendant, and this testimony was afterwards contradicted by that of the plaintiff. The learned justice, in charging the jury, said in regard to the point that the communications were' privileged: “He, the defendant, had a right, and it was his duty, to go before the common council and give testimony, * * * but he was privileged only to the extent of speaki ng the whole truth, and nothing but the truth, in reference to those charges. So that at last the jury must come down to the question: Are the allegations that the defendant made in reference to the conduct of the plaintiff true or false? That he reiterated them before the common council, if they are untrue, was an additional aggravation that we may take into account.” To this the defendant excepted. At defendant’s request the court charged that as to the investigation no damages can be given for words there spoken, unless express malice be shown, and the court added, “If they were untrue, it shows express malice, ” to which defendant excepted. The plaintiff was in the employ of the city of Amsterdam, but was not an officer. The charter of the city (Laws 1885, c. 181, § 82) authorizes the common council to summon a person to appear and testify before them, and provides for the punishment of a witness refusing to answer. The matter before the common council at that time was an investigation as to the plaintiff’s conduct in matters connected with his work and duty as city engineer. It was therefore a proper subject of investigation. As he was not an elective officer, formal charges were not needed. Section 16. This investigation before the common council was then a judicial investigation in the sense that the common council could summon witnesses, administer an oath to them, and punish them for refusing to testify. Hosmer v. Loveland, 19 Barb. 111. Testimany given under such circumstances is absolutely privileged; that is, so long-as the testimony is confined to the matter before the tribunal, the witness is nob-liable for what he says, whether he utters it maliciously or not, or whether it is true or false. Of course, he may not abuse this privilege by going outside-of the questions put to him, and making false and slanderous statements, but-it is essential to the due administration of justice that the witness should be at liberty to testify without the peril of an action for slander if some person deems his testimony slanderous and false. Hastings v. Lusk, 22 Wend. 410; Moore v. Bank, 123 N. Y. at 425, 25 N. E. Rep. 1049. This principle is nob denied by the plaintiff, but he urges that it must appear that the statements