
    MELLEN v. ATHENS HOTEL CO.
    (Supreme Court, Appellate Division, First Department.
    November 29, 1912.)
    1. Libel and Slandeb (§ 51*)—Pbivileged Communications—Effect of
    Malice.
    Where, though a communication injuriously affecting another in his ■profession was of a privileged character, a malicious intent on the part of the writer would destroy the privilege, and render it actionable.
    [Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 149, 15Ó; Dec. Dig. § 51.*]
    2. Libel and Slandeb (§ 101*)—Pbivileged Communications—Malice—
    Bubden of Proof.
    Where statements in a privileged communication are relied on as slander, because of malice in their making, the burden of proving malice is on the plaintiff.
    [Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. §§ 273-280; Dec. Dig. § 101.*]
    3. Libel and Slandeb (§ 83*)—Privileged Communications—Malice—
    Complaint.
    An inference of malice, which would support an action for slander in his profession by statements contained in a privileged communication, will arise where expressions beyond such as are necessary for the purposes of the communication are included; but, whatever the proof available, plaintiff need not allege such matters of evidence in his complaint.
    
      •For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
      [Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. § 198; Dec, Dig. § 83.*]
    Appeal from Special Term, New York County.
    Action by Nathan C. Mellen against the Athens Hotel Company. Demurrer to the complaint overruled, and defendant appeals. Affirmed.
    See, also, 149 App. Div. 534, 133 N. Y. Supp. 1079.
    The following is the opinion of Bischoff, J., at Special Term.
    
       There can be no question that the matter contained in the letter set forth in the complaint injuriously affected the plaintiff in his profession. While the surrounding circumstances, as alleged, would indicate reason for a ruling upon the trial that the letter was a privileged communication, because referring to a matter of business interest common to the writer and the addressee, the complaint is not rendered thereby insufficient in law. If the writing were ostensibly privileged, a malicious intent upon the part of the writer would destroy the privilege; but the plaintiff would have the burden of proving malice upon the trial. Odgers on Libel and Slander (4th Ed.) p. 236; Hemmens v. Nelson, 138 N. Y. 517, 529, 34 N. E. 342, 20 L. R. A. 440.
    
       An inference of malicious intent may arise from the writer’s inclusion of expressions beyond such as are necessary for the purpose of the privileged communication; but, whatever the proof available, the plaintiff need not allege his evidence. Here the complaint sets forth the fact that the matter was published maliciously, and upon proof within the allegation of fact a case for the recovery of damages would be presented.
    Demurrer overruled, with costs, with leave to defendant to plead over on payment of costs within 20 days.
    Argued before INGRAHAM, P. J„ and McLAUGHLIN, LAUGH-LIN, CLARKE, SCOTT, MILLER, and DOWLING, JJ.
    Theall & Beam, for appellant.
    Strong & Mellen, for appellee.
   PER CURIAM.

Order affirmed, with $10 costs and disbursements, on opinion of Bischoff, J., with leave to defendant to withdraw demurrer and to answer on payment of costs.

Order filed.  