
    Arthur E. Stevenson, Appellant, v. Francis G. Ward, Respondent.
    
      Slander — when the words spoken by a public, officer to his superiors are privileged, — malice is not established by simply proving the falsity of the words—privilege must be pleaded.
    
    A complaint in an action of slander, brought by a master plumber residing in the city of Buffalo, alleged that, on the 33d of July, 1898, the defendant spoke of and concerning the plaintiff and his business the following defamatory words: “He (meaning plaintiff) is crooked.; he is as' crooked as they make them. He (meaning plaintiff) lied to one of the clerks in the water department and obtained a permit fraudulently from my department; and he (meaning plaintiff) cannot have any more permits from my department until he (meaning plaintiff) has squared himself with me and my department.”
    It also alleged that, subsequently, on July twenty-sixth, in the course of a conversation between the plaintiff and the defendant, the defendant twice reiterated substantially the same charge.
    The answer alleged that, when the defendant uttered the objectionable words, he was the superintendent of the water department of the city of Buffalo, and that the language used by him upon the first occasion was in response to an inquiry made by his superiors in office concerning a matter within the scope of his duties; that the second and .third utterances were expressly invited by the plaintiff himself, and that all three communications were privileged.
    
      Held, that, under the circumstances, the trial court was justified in holding as a matter of law that the slanderous utterances were not actionable, in the aBsence of evidence of express malice;
    That an allegation in the answer, made with.reference to the utterances on July twenty-sixth, to the effect “ that all statements made by this defendant concerning the plaintiff were made by this defendant, in the presence of said commissioners of public works and chief engineer, in the discharge of his official duties and at their request, with the honest belief that they were true and not otherwise,” standing by itself was insufficient upon which to base the defense of privilege, but was sufficient for that purpose when considered in connection with the specific allegations referring to the utterances on July twenty-third, which preceded it in the answer.
    Where a defamatory statement or charge is shown to have been privileged the burden of establishing actual malice is upon the plaintiff, and the burden is not met by simply proving its falsity.
    Privilege is a matter of special defense, which must be expressly pleaded in order to be available.
    Appeal by the plaintiff, Arthur E. Stevenson,' from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 10th day of May, 1899, upon a nonsuit granted by the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 8th day of August, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Clark H. Hammond, for the appellant.
    
      Tracy C. Becker, for the respondent.
   Adams, P. J.:

The plaintiff, who is a' master plumber residing in the city of Buffalo, alleges in his complaint that on or about the 23d of July, 1898, the defendant spoke of and concerning the plaintiff and his business the false and defamatory words following, to wit: “ He (meaning plaintiff) is crooked ; he is ,as crooked as they make them. He (meaning plaintiff) lied to one' of the clerks in the.water department and obtained a permit fraudulently from my depart-. . ment; and he (meaning plaintiff) cannot have any more permits from my department until he (meaning plaintiff) has squared himself with me and my department, and he (meaning plaintiff) cannot square himself with me in a. thousand years.”

The plaintiff also alleges that subsequently, and on the twenty-sixth day of the same month, the defendant, in the presence and hearing of certain persons, said to the plaintiff: “I said yon (meaning plaintiff) are crooked; you are as crooked.as they make them and I will stand by what I said; ” and that, in the course of the same conversation, he reiterated substantially the same charge in the following language: “ You (meaning plaintiff) are crooked; yon lied and misrepresented to my clerks and obtained a permit by fraud, and you cannot have any'more permits from this office till you have squared yourself with' the department.”

The defendant admits'the utterance of the language imputed to him upon these several occasions, but in justification thereof alleges that when the objectionable words were spoken he Was the superintendent of the water department of the city of Buffalo, and that the language used by him upon the first occasion was in response to an inquiry made by his superiors in office concerning a matter properly » within the scope of his duties; that the second and third utterances were expressly invited by the plaintiff himself; that all three Ncominunications were privileged, and that consequently they cannot furnish the basis for an action of this nature.

The language complained of by the plaintiff was unquestionably slanderous per se, but we think, in view of the circumstances under which it was used upon the first occasion, and in view of the fact that it was only reiterated upon the second and third occasions in response to an express invitation of the plaintiff to repeat the same in the presence of a third person, presumably for the purpose of laying a foundation for this action, that the trial court was justified in. holding, as matter of law, that it was not actionable in the absence of any evidence of express malice.

' We have so recently had occasion to determine what constitutes a privileged communication that it will be unnecessary again to consider that question; but in this connection it may be pertinent to refer to a well-settled rule, applicable to actions of this character, which is that where the defamatory statement or charge is shown to have been privileged, the burden of establishing actual malice is cast upon the plaintiff, and that such burden is not met by simply proving that the charge was false. (McCarty v. Lambley, 20 App. Div. 264 ; Hemmens v. Nelson, 138 N. Y. 517.)

We think that the present case is entirely destitute of evidence which would have warranted its submission to the jury upon the question of express malice, and there would consequently be really nothing for the court to consider, were it not for the contention urged by the plaintiff’s counsel that the defense relied upon is insufficiently pleaded.

Privilege is unquestionably a matter of special defense, and being such, it should be expressly pleaded in order to be made available to the defendant. (Code Civ. Proc. § 536 ; Townshend on Slander & Libel, § 350; Steffen v. Shaefer, 15 N. Y. Supp. 493.)

It becomes important, therefore, to determine whether or not the defendant has complied with the requirement of the rule which the plaintiff invokes.

So far as the words spoken on the twenty-third day of July are concerned, there can be no question but that the answer contains averments as to the circumstances under which they were uttered which expressly ¡3ut in issue their privileged character. The pleader, however, instead of repeating these averments and detailing the circumstances under which the words were repeated upon- the subsequent occasions, has simply alleged “ that all statements made by this defendant concerning the plaintiff were made by this defendant in the presence of said commissioners of public works and chief engL neer in the discharge of his official duties and at their request, with the honest belief that they were true and not otherwise.”

It cannot be denied that this averment, standing by itself, would be insufficient upon which to base a defense of privilege; but'“no strained or close construction will be indulged in to exempt a case from the protection of privilege ” (Moore v. M. N. Bank, 123 N. Y. 420, 426), and, therefore, when considered in connection with the exceedingly specific allegations which precede it in the defendant’s answer, we are inclined to think that, within the liberal rules of construction which now obtain, it may be regarded as sufficient.

The primary object of a pleading is to apprise the opposite party of the issue he may expect to meet when the case is brought to trial; and inasmuch as the defendant’s utterances; on the twenty-sixth day of July were but reiterations of those of the twenty-third of that month, and as it was not claimed that any new actionable matter was charged- against the plaintiff upon the latter date, the express defense of privilege interposed to the charge of the twenty-third, together with the general averment made by the defendant that all the statements made by him concerning the plaintiff were made at the request of his superior officers, in the discharge of his official duties and in the honest belief that they were true, was equivalent, we think, to a reiteration of the plea of privilege and was sufficiently specific to inform the plaintiff that each cause of action was to encounter that defense.

We conclude, therefore, that no error was ’ committed by the learned trial court in dismissing the plaintiff’s complaint, and that the judgment and order appealed from should, consequently be affirmed.

All concurred.

Judgment and order affirmed, with costs.  