
    George S. Dada, appellant, v. Giles S. Piper, respondent.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 1, 1886.)
    
    1. Libel—Pleadings—Statement in pleading privileged unless there,
    IS EXPRESS MALICE SHOWN.
    In an action for libel, the libellous matter was contained in a complaint in an action by C against Dada, the plaintiff herein, and his assignor, to set aside and declare void a judgment obtained by said assignor against 0, by the alleged false and perjured evidence of Dada, in which action Piper, the defendant herein, was attorney of 0, and signed the complaint, and said complaint was dismissed on the ground that there was no cause of action stated therein. In the trial of the present action the aforesaid complaint was put in evidence as proof of the libel, and no other evidence was. offered. It was admitted that such publication was made of the alleged libel as is incident to the ordinary conduct and trial of the kind of action in which it was made. No other publication was shown. Beld^ that unless it is shown that the defendant act d with express malice and was using the judicial forms in bad faith for the purpose of assailing the plaintiff Dada’s character, the complaint was a privileged communication.
    2. Same—Evidence—Wiiat it is necessary to prove.
    The plaintiff should have gone further than proving a complaint in a judicial proceeding, because that, in ti.e present case, was privileged. He should have shown, in addition, that tne defendant knew that what he alleged was false; that In was actuated by malice, or that he made use of a legal pi oceeding in bad faith as a cloak to his libellous utterances.
    
      George S. Dada, appellant and attorney in person.
    
      Mead & Strahan, for repondent, Giles S. Piper.
   Boardman, J.

This is an appeal from a judgment dismissing the complaint. The parties are attorneys. The action is for libel—the libellous matter being in a complaint, in an action brought by one Cataline against the plaintiff and Charles Holden’s assignor to set aside and declare void a judgment obtained by said Holden’s assignor against. Cataline by the alleged false and perjured evidence of the present plaintiff, in which action the defendant was the attorney for Cataline, and as such signed the complaint. That complaint was dismissed upon the trial, on the ground that no cause of action was stated therein.

On the trial of the present action the aforesaid complaint-was put in evidence as proof of the libel. Ho other evidence was offered. The defendant admitted that such publication was made of the alleged libel as was incident to the ordinary conduct of the action in which it was made, and to the trial; and the plaintiff admitted he did not expect to show any other publication. The complaint was thereupon dismissed on the ground that the publication and complaint were privileged. There is nothing in the-case to show that plaintiff offered to make any additional proofs, or that he was prevented from so doing. The plaintiff must, therefore, stand upon the only proof given, and he cannot now insist that his right to make further proof was cut off by the dismissal of his complaint. He should have made the offer, and, if rejected, he should have taken an exception. Then it would have presented a legal question for review.

The power of a court of equity to set aside and avoid judgments when procured by fraud or perjury is undoubted. N. Y. C. R. R. Co. v. Harrald, 65 How., 89; Huggins v. King, 3 Barb., 616; Dodson v. Pearce, 12 N. Y., 156; 1 Story Eq. Jus., § 252. Under what precise conditions ■equity will assume to act, as has been the subject of frequent discussions. Besides the cases already cited reference maybe had to Ross v. Wood (70 N. Y., 8), Burden v. Fitch (15 J. R., 121), Stilwell v. Carpenter (59 N. Y., 423), Mattier v. Parson (32 Hun, 338).

It was adjudged that Cataline’s complaint did not set forth a cause of action for setting aside the judgment against her. But it by no means follows that she has no cause of action. The pleading may have been defective and essential facts may have been omitted. It does not, therefore, follow that the facts stated were not pertinent •or material to a cause of action, and hence malicious. Nor ■can it be inferred that a defective complaint is evidence of malice on the part of the pleader. That would carry the •doctrine of presumptive malice to a dangerous extent fox-attorneys. The court has jurisdiction of the subject matter and of the parties to the action. The dismissal of the complaint was an incident in the action which did not take away its character of a judicial proceedixxg. Until it is shown that the defendant acted with express malice, and was using the judicial forms in bad faith'for the purpose of ■assailing, plaintiff’s character, the -presumption must be extended to the defendant that the Cottiplaint was a privileged cominumcation. It was, and-'is,-conceded by the appellant that the court must determine Whether the communication was privileged. In the present case the learned justice at the circuit held this complaint ■ to be within the privilege, and that without evidence of express malice a cause of action was not made out. In this we think there was no error.

The principle seems quite elementary. 1 Stark, on Slander, chap. 10; 2 Green. on Evidence, §421; Moak’s Underhill on Torts, 152; Marsh v. Ellsworth, 50 N. Y., 309; Klinck v. Colby, 46 id., 427, 433; Newfield v. Copperman, 47 How., 87, 88; Hastings v. Lusk, 22 Wend., 410. The plaintiff should have gone further thaxi proving a complaint in a judicial proceeding, because that, in the present case, was privileged. He should have shown in addition that the defendant knew that what he alleged was false, that he was actuated by malice, or that he- made use of legal proceedings in bad faith as a cloak to his libellous utterances. Having failed to do this, his cause of action was not made out and his complaint was properly dismissed.

The judgment should be affirmed, with costs.

Hardest and Follett, JJ., concur.  