47 How. Pr. 87 | The Superior Court of New York City | 1874
This action was instituted and attempted to be tried as an action for a malicious prosecution, but was finally submitted to the jury as an action for libel. After a careful re-examination of the evidence and of the rulings
The next question, therefore, is whether the action was properly turned into one for libel. Under the view which was then taken of the law applicable to this case, no opportunity being had to make a critical examination, and the counsel for the respective parties citing no authorities, the complaint seemed to contain sufficient averments for that purpose, and the state of the proof seemed to call for the change; and if such view was correct, defendant had no business to be surprised by the ruling which permitted the change. After full consideration of the authorities submitted by the defendant on this motion, however, I have become satisfied that such view was not strictly correct. The true doctrine is, that words spoken or written, in a judicial proceeding, by any person having an interest therein, or a duty to perform therein as witness or counsel, are not only conditionally, but absolutely privileged, and no action will lie therefor, however false, defamatory or malicious they may be, provided they were pertinent and material to the inquiry before the court or officer (Perkins agt. Mitchell, 31 Barb., 461; Marsh agt. Ellsworth, 2 Sweeny, 589; Same case, 1 id., 52; Suydam agt. Moffat, 1 Sandf., 459; Warner agt. Paine, 2 id., 195;
That the statements contained in the affidavit sworn to by the defendant before the fire marshal of Brooklyn were pertinent and material to the inquiry instituted by said officer as to the origin of the fire which had destroyed plaintiff’s factory, cannot be denied. Aside, therefore, from the question as to the sufficiency of the allegations of the complaint as a complaint for libel, it was not enough to instruct the jury that upon proof to their satisfaction of defendant’s malice and of the intentional falsity of his sworn statement, they were at liberty to render a verdict for the plaintiff. If, for the contents of that statement, plaintiff can maintain an action of libel at all, which under the decisions referred to may perhaps be considered to be still an open question, it is clear that he can only do so upon proof, which takes his case out of the operation of the general doctrine above alluded to. Proof that the defendant maliciously contrived to induce the fire marshal to institute the inquiry and to subpoena him, the defendant, and that the defendant thus expressly manufactured the occasion, on which he bore false witness against the plaintiff, may perhaps have that effect. But without expressly deciding the point, it is sufficient for the purposes of this motion to say, that the case was not submitted to the jury upon this theory, but upon another and insufficient theory.
The motion for a new trial must be granted, with costs to defendant to abide the event, and plaintiff may have leave to amend his complaint, if he should be so advised. Order to be settled upon a notice of at least two days.
