
    Nathaniel H. Woodman, Appellant, v. George W. Kidd, Respondent.
    
      libel — reading a libelous a/rticle before a referee — the decision of the referee that it is material evidence makes it privileged.
    
    "Where a referee, before whom an action is being tried, decides that a letter written by the plaintiff to the defendant is relevant and material, the reading of the letter in the presence of the referee "and the persons attending the trial is not such a publication of a libel contained in it as will support an action for libel brought by the defendant in that action against the plaintiff therein.
    Appeal by the plaintiff, Nathaniel IT. Woodman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day •of December, 1896, upon the dismissal of the complaint by direct tion of the court after a trial at the New York Trial Term,
    The action was brought to recover damages for an alleged libel ■contained in a letter said to have been written by the defendant. The complaint alleged that' on April 25, 1890, the libel was published by circulating the same “ in the place of business of the said •defendant as well as in the place of business of this plaintiff.” In support of this allegation the plaintiff upon the trial proved that the letter containing the libel was inclosed in an envelope and left upon the desk of the plaintiff, either by mail or messenger, about the time .stated in the complaint; that the defendant, at the time the letter bears date, “ kept a typewriter,” and .that a press copy of the letter was produced before the referee on the trial of an action had some time before, in which Kidd was plaintiff and Woodman was defendant, and that Kidd’s counsel read the letter at that time. This prior action resulted in a judgment in favor of Kidd, and it does not appear that it has been appealed from.- The ground upon which the complaint was dismissed was failure to prove publication of the alleged libel.
    
      Dennis McMahon, for the appellant.
    
      Hamilton Wallis, for the respondent.
   O’Brien, J.:

The burden was upon the plaintiff of showing not only that the defendant was the author of the letter claimed to be libelous, but also that he published it or caused it to be published. The writing of the letter was admitted by the defendant, and upon the subject of publication there was no evidence from which the jury would have been justified in inferring that anybody had ever seen the letter except the plaintiff and the defendant. It is true that a press copy of the letter was made and that the defendant had a typewriter, but there is no evidence to show that a typewriter operator had anything to do with the letter, although it was typewritten. The only evidence, therefore, as bearing upon the question of publication was that in the suit of Kidd v. Woodman before a referee, Kidd’s counsel, after demanding the production of the latter, which was refused, -produced a copy and read it in the presence of the referee and the persons attending at the trial. This the plaintiff insists was a publication, the argument being that, though the rule must be recognized that matter written or spoken which is relevant and material to an issue pending before a court or referee is privileged, this letter, being neither, was not a privileged communication. The answer to this, however, is that it was claimed by Kidd to be material and relevant and competent, and was so held by the referee ; and such ruling having been made in a case between the same parties as are here on the record, the ruling is a binding adjudication. It will be seen, therefore, that we are not at liberty to adopt the argument of the appellant that the letter, being improperly admitted, was not privileged.

The plaintiff excepted to the court’s refusal to allow the withr drawal of a juror or to amend the pleadings, both motions being directed to affording the plaintiff an opportunity of removing all question as to the right to rely «upon what happened before the. referee in the prior action as evidence of publication. It will be seen that we have discussed the question as though the court had allowed the amendment, because there is sufficient evidence to present the point which the plaintiff desired to make, and having reached the conclusion that with such amendment, and giving the plaintiff the benefit of what occurred before the referee, it would not have aided him, he was, therefore, not injured by the refusal to grant his motion to withdraw a juror or amend the pleadings.

We think, therefore, that the disposition made by the court below was right, and the judgment should be affirmed, with costs.

Yan Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.

Judgment affirmed, with costs.  