
    R. Louis Lapetina, Appellant, v. Raffaelo Santangelo, Respondent.
    Second Department,
    February 28, 1908.
    Pleading — libel''—partial defense in justification — when demurrable -r-qualified privilege.
    When facts are not expressly pleaded as a partial defense the. plaintiff, and the court upon demurrer, must test the plea as i£ made in complete defense.
    Hence, when in an action for libel in charging the plaintiff with dishonesty in two transactions, the defendant “ further answering the complaint and in justification” alleges matters justifying the charge of dishonesty in one of the transactions, the plea is not broad enough to be a complete defense and is bad on demurrer.
    A "letter written by the defendant to his attorney charging • another- attorney with dishonesty in a professional transaction, is. one of qualified Or - prima facie privilege, and when the complaint expressly charges that the libel was false and malicious, the plea- of privilege must be framed to meet the specific allegatiqns or it is bad upon demurrer.
    Appeal by the plaintiff,-R. Louis Lapetina, from a judgment of the Supreme Court in favor of the defendant, entered in- the office of the clerk of the county of Kings on the 20th day of. Uovember, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term.
    • William McArthur, for the appellant.
    
      Robert B. Knowles, for the respondent.
   Jenks, J.:

This is an.appeal from an interlocutory judgment overruling the plaintiff’s demurrers in an action for libel. The demurrers are.to the first further defense in alleged justification, the secp.nd further defense in alleged justification and to the third and separate defense. The ground as to all-is insufficiency in law upon the face. The alleged lihel was the writing and publishing of the following' letter sent to Charles '-Oechler, Esq.,--an attorney at law : “ Your kind letter received, I am obliged write to you in this manner. If 1 have sent Mr. Knowles last evening in your office the reason was that I have Know after the Hackensack’s case Lapetina. -Lapetina. now is for me a dishonést man. I. have received from yon two receipts one of five dollars and other of ten dollars. When I came in your respectable office Lapetina .asked me ten-dollars,T had in my pocket eight dollars only, Lapetina told me 'all right Mr. Santangelo, this evening I will see you in your drug store, I will bring the receipt and you shall give me ten dollars. The evening he carne I gave him the money. How Lapetina refuce five dollars,- After your letter I am ready to brace Sicilian to break him'ttye face to this ignorant, stupid meddler man, I.will cite him in the court to this:quack.’’ The complaint shows that this letter referred to two transactions.

Thp plea challenged by" the first demurrer is thus introduced, • Defendant, further answering' the complaint and in justification, states.” The matter thereof is in justification of the charge that ' the plaintiff was not honest in' the Hackensack transaction. While the plea may jiass as in justification, it is not broad enough to be a complete .defense ■—• indeed it does not purport to -be one. When the facts- are not expressly pleaded as a partial defense, the plaintiff and the court upon demurrer must test the plea as if given incomplete defense. (Thompson v. Halbert, 109 N. Y. 329.) Hence the -plea is bad. - For like reasons the plea attacked by the second demurrer is bad.

The third demurrer attacks a plea thus introduced: “ Defendant for a further and separate defense alleges:

Twenty-sixth. That heretofore and in the Municipal Court of the City of Hew York, Borough of Brooklyn, the defendant herein, and one John De la Tergo, brought an action against Isabella Jaffe and Fannie Zatulove, in which said action, the said Charles Oechler, the person to whom the letter attached to the complaint was written, appeared as attorney for this defendant and in which said action the professional obligation referred to in the complaint was incurred by defendant. ■ '

Twenty-seventh. That this; defendant communicated arid wrote said letter to said Citarles .Oechler, as attorney for this defendant and in connection with his professional services rendered to defendant in said action, and not otherwise; and the defendant claims that said communication to said Charles Oechler was privileged as between attorney and client and related to matters wherein said Charles Oechler appeared as attorney for this defendant.”

Referring to this plea as We may do upon demurrer (Fry v. Bennett, 5 Sandf. 72), it is quite clear that it is one of qualified privilege — “prima facie " privilege, as it is often termed.; (Odgers Lib. & Sland. [4th ed.] chap. 9; Newell Def. Sland. & Lib. chap. 19, §§ 63 et seq., §§ 92, 96, 106; Byam v. Collins, 111 N. Y. 143; Hill v. Durham House Drainage Co., 79 Hun, 335.) It falls within the condition well expressed by Baron Fitzgerald in Waring v. M'Caldin, (7 Ir. Rep. C. L. 288, cited in Newell, supra, § 106). It appears that the letter was elicited by a letter from the addressee. We cannot infer that it was directly responsive thereto, but we may infer that it was in explanation of the reason why the defendant had sent one lawyer to another, and that the reason was that the plaintiff, a lawyer, when in Mr. Oeehler’s office— associated with him or in his employ—had not treated the writer honestly in certain business dealings. Even though the occasion should be held one of qualified or prima facie privilege, the questions of bona fi des, belief and of actual malice ' survive it. (Klinck v. Colby, 46 N. Y. 427, 430.) The plaintiff’s complaint1 expressly avers that the libel was false and malicious, and I think then that the defendant should have pleaded so as to meet these specific allegations and thus put in plea of qualified privilege in proper form. (O'Donaghue v. M'Govern, 23 Wend. 26; Buddington v. Davis, 6 How. Pr. 401,) If the letter were absolutely privileged, then the plea might be sustained for the reason that the law would not permit the plaintiff’s plea of falsity and malice. (Garr v. Selden, 4 N. Y. 94.)

The interlocutory judgment is reversed, with costs, and the demurrer sustained, with costs, with leave to the defendant to plead over on payment of costs.

Hooker, Gaynor, Rich and Miller, JJ\, concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to the defendant to plead over on payment of costs.  