
    Morris Miodownick, Respondent, v. Israel Fischman, Appellant.
    Second Department,
    October 12, 1909.
    Libel —privileged communication—when question for jury — malice.
    It is for .the jury to say whether a communication alleged to be libelous is privileged if the facts upon which the privilege is based be in dispute. The publication can be held privileged as a matter of law only where the facts are uncontroverted.
    In an action for libel the question of actual malice is for the jury.
    • Appeal by the defendant, Israel Fischman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of December, 1908, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 26th day of December, 1908, denying the defendant’s motion for a new trial made upon the minutes.'
    The action was brought to recover damages for libel.
    
      Leopold Moschcowitz, for the appellant.
    
      Eugene L. Gottlieb, for the respondent.
   Rich, J.:

The parties are members of a fraternal body, of which the defendant is treasurer. The libel is contained in a letter addressed to the lodge and read to its members, purporting to be a complaint against the plaintiff, with specifications, on which charges were later based, upon.the trial of which the plaintiff was exonerated. The defendant contends that this was a privileged communication, in consequence of which it devolved upon the plaintiff, before he could recover, to prove the existence of express malice, and that the learned trial court erred in denying his motion to dismiss the complaint, and in submitting to the” jury as a question of fact whether or not the communication was privileged. The facts upon which the defendant bases his claim of privilege were in dispute and it, therefore, became the duty of the trial court to submit that question to the jury. It is only where such facts are not controverted that a trial court is privileged to determine, as matter of law, that the writing containing the libel is a privileged communication. (Lovell Co. v. Houghton, 116 N. Y. 520.) So fair and impartial was the charge of the learned trial justice that no exception was taken to any portion of it by counsel for either party, and no objection was taken to the submission of the question as to whether the communication was privileged. The question as to whether the plaintiff had proven actual malice was also one of fact for the determination.of the jury. (Hamilton v. Eno, 81 N. Y. 124.) The verdict is supported by the evidence, and the judgment and order must be affirmed, with costs.

Hiesghbebg, P. J., Jebes, Gaybob and Bubb, JJ., concurred.

Judgment and order affirmed, with costs.  