
    Powers vs. Dubois.
    A publication of and concerning a candidate for an elective office is libellous, which charges that he had bartered away a public improvement (el g. a rail road,) in which the constituency for whose suffrages he is a candidate had a deep interest, for the charter of a bank to himself and his associates ; and that if elected, he would be an unfaithful representative and act counter to the interests of his constituents ; that he would by criminal indifference or treachery seriously retard or totally prevent the construction of such rail road— and that he would do all this from motives of personal political aggrandizement, or to ac - complish some sinister and dishonest purpose, or to gratify his private malice, 
    
    Libel. The plaintiff in his declaration stated, by way of inducement, that on the 19th April, 1830, a rail road company was incorporated, called the Canajoharie & Catskill Rail Road Company, for the construction of a rail road from Canajoharie to Catskill, and that on the 14th March, 1831, a bank called the Tanners’ Bank was incorporated, to be located in the village of Catskill; that the whole amount of the capital stock of the rail road company was subscribed, a portion thereof paid in, and directors chosen to manage the concerns of the company, but the directors neglected to take efficient means for the construction of the rail road until the 1st November, 1835. He further alleged, that the construction of the rail road was by many citizens, and particularly citizens residing in the counties of Greene and Schoharie, in the third senatorial district of the state, considered to be of great public importance, and their attention was much excited [64] upon the subject, and the failure to construct the road was attributed to sinister and corrupt motives in those who directed and influenced the operations in respect to the road. That to avoid the odium of defeating the public expectation in this respect, some of the individuals who were justly chargeable with such defeat, unjustly and untruly pretended, and reported and caused to be reported that the plaintiff, together with Orrin Day and Henry Whittlesey, influenced the proceedings of the company in preventing the constructing of the rail road, and to give color to such reports represented that the plaintiff, together with the said Day and Whittlesey, had entered into an arrangement with the Albany Regency (meaning thereby certain leading and prominent political individuals in the city of Albany,) who were opposed to the construction of the rail road whereby they corruptly stipulated and agreed to defeat the making of the said road, and that in consideration thereof a charter should be granted for the incorporation of the Tanners’ Bank, and that in pursuance of such agreement a charter was granted to the plaintiff, and Day and Whittlesey and their associates, and that the construction of the rail road was defeated by the plaintiff and his associates. The plaintiff further alleged, that at the time of the publication of the alleged libel, to wit, on the 2d November, 1835, he was a candidate at an election then holden for the office of,senator, in and for the third senatorial district, and that the defendant, to injure his good name, to bring him into public scandal, and to prevent and defeat his election, printed and published an address to the electors of the third senatorial district, of and concerning the plaintiff, &c., containing among other things the following matter: “ He is moreover known to be in the confidence of those whose interest it is to be hostile to this undertaking (meaning the Canajoharie and Catskill rail road company,) and strong suspicions are entertained that should he be elected, motives of personal political aggrandizement, would be very likely to induce him to favor any schemes which the enemies of the work might devise, to impede its progress and eventually destroy it.” The plain- [65] tiff averred, that by this portion of the publication the defendant meant to charge that if he were elected, he would be an unfaithful representative, and act counter to the interests of his constituents, from motives of personal political aggrandizement.
    
    The second count of the declaration set forth another portion of the address in these words: “ Again; does not Mr. Powers’ entire course in relation to this question (the construction of the rail road meaning,) strongly indicate the truth of the rumor once so rife (meaning the verbal reports referred to in the introductory part of the declaration,) that the rail road had been bartered away with the central political power of the state (meaning certain leading and prominent individuals in the city of Albany,) to obtain the cnarter of a certain monied institution (meaning the Tanners’ Bank.") The plaintiff averred that the defendant, by this portion of the address, meant to charge that he had theretofore corruptly agreed that, in case of the granting of the charter of the Tanners’ Bank, he would prevent or retard the construction of the rail road.
    The third aim last count of the declaration set forth the following portion of the publication. “ Electors of Greene, Schoharie and others, vrho hope to be beneiitted by the Canajoharie and Catskill rail road, to you I appeal. Pause and reflect, I beseech you, before you cast your votes for James Powers; a man who has purposely kept aloof from engaging .in this work (the construction of the rail road,) so essentially important to our future prosperity. The progression of this work may be seriously retarded, and its ultimate completion jeopardized, by the criminal indifference or treachery of nominal friends—and may be sacrificed to accomplish,sinister purposes or gratify private malice. A inan of Mr. Powers’ wealth and influence should be found foremost in advancing the work—not retarding it by raising subtle legal sophistries, whose only tendency is to create doubt and distrust.” The plaintiff averred, that by this portion of the publication the defendant meant to charge that the plaintiff, if elected a senator, would, by [66] criminal indifference or treachery, seriously retard or totally prevent the construction of the rail road, in order to accomplish some sinister and dishonest purpose, or to gratify his private malice.
    To this declaration the defendant put in a general demurrer, and the plaintiff joined in demurrer.
    
      M. T. Reynolds, for the defendant.
    
      S. Beardsley (attorney general ) for the plaintiff.
    
      
       A resolution adopted and entered among the proceedings of a county medical society, expelling a member, is not privileged. Fawcett v Charles, 13 Wend. 473 ; see Howard v. Thompson, 21 Wend. 319. A communication of a church member complaining of the conduct or character of his clergyman, to their common superior and seeking his removal, is privileged. O’Donaghue v. McGovern, 23 Wend. 26. When the communication is prima facie privileged the plaintiff must aver and prove that it was false and malicious. ■
      
      The communication of an agent to his principal touching the business of his agency and not going beyond it, is privileged. Washburn v. Cooke, 3 Denio, 110. What is said by a party, attorney or counsel in a judicial proceeding, if pertinent and material to the matter in controversy, is absolutely privileged and can not be said to have been uttered with malice. Gilbert v. The People, 1 Denio, 41; Suydam v. Moffat, 1 Sand. R. 459; Bailey v. Dean, 5 Barb. R 297; Warner v. Paine, 2 Sand. R. 195. See Garr v. Selden, 4 Comstock, 91; 3 Sand. R. 341. As to verbal slander, when privileged or unprivileged, see 3 Johns. 180; 7 Cowen, 725 ; 22 Wend. 410; 8 Cowen, 141; 2 Wend. 515 ; 1 Denio, 488 ; 1 Barb. R. 155 ; 3 Wend. 292; Howard v. Sexton, 4 Comstock, 157; Fry v. Bennett, Code Rep. N. S. 248.
      See Weed v. Foster, 11 Barb. 203; Stanley v. Webb, 4 Sand. 21; Matthews v. Beach, 5 Sand. 256; Streely v. Wood, 15 Barb. 105. It seems, that by a recent statute in England (6 and 7 Victoria, ch. 96,) the defendant in an action of libel, may, in his plea, deny actual malice and state an apology. See Barrett v. Long, 16 Eng. Law and Eq. R. 1.
    
   By the Court,

Nelson, C. J.

The only question presented in this case is, whether, the publication which is set forth in the declaration, and assuming that all the material averments therein are true, contains a libel upon the character of the plaintiff. The words import that he has been guilty of entering into a corrupt understanding or agreement with certain persons supposed to control the political and legislative power of the state, with a view to his own particular advantage, to the serious injury of the public interests. This is, in substance, the charge in second count, in connection with the prefatory averments; and further, that if elected by the people to the senate of the state, he would there use his official station and influence to embarrass, if not entirely defeat, what is deemed by the writer a great public improvement, and in which a portion of the plaintiff’s constituents were deeply interested, for the sake of personal and political aggrandizement, or for corrupt purposes, or to gratify individual malice. This is the substance and import of the charges contained in the first and third counts.

The publication set forth in the second count, with the explanatory precedent averments, in my judgment, is not only libellous, but contains an aggravated charge; one which if true, would justly exclude the plaintiff from the esteem and confidence of the community, and subject him to public odium and contempt. It charges him with a corrupt agreement to sacrifice the interests of the community in which he resides, for private and sinister [67] purposes; and necessarily implies that in the consummation of the profligate scheme, he deceived and cheated the legislature, unless we assume what is not asserted, that they were parties to the plot. A combination of wickedness is thus imputed to him, the attempt to destroy a favorite and useful public improvement, the procurement of the charter of a bank uncalled for by the wants of the community, all with a view to private gain, and by practising in conjunction with others a gross fraud upon the legislature.

As it respects the other counts, until the morals and. judgment of ilie cornmunity become so perverted, that the legislation of the state conducted for private and selfish purposes, regardless of the public weal, ceases to be a crime, or to expose the actors to merited odium and the reprobation of the people, the imputations contained in them must be considered by the courts libellous. They seek and tend to make the impression upon the public mind, that the plaintiff possesses such infirmity and depravity of character, that if trusted by the electors, he will use his official station to betray their particular interests, and prostitute it exclusively to the furtherance of his own private schemes. Judgment for plaintiff on demurrer.  