
    Jacob Rosenberg, Resp’t, v. Thomas J. Nesbitt, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    1. Libel—When action fob can be maintained.
    The plaintiff was a juror impanneled in a certain criminal prosecution tor bribery The complaint charges that the defendant, in connection ■with another, during such trial, willfully and maliciously spoke and published, and caused to be published, etc., false, malicious, defamatory and scandalous words to the effect that plaintiff was guilty of willful and corrupt perjury in answering certain questions put to him touching his qualification as such juror. Held, that the charge made by defendants was not a privileged communication, if the allegations of the complaint were established; that the defendants, being volunteers in the legal proceedings, the circumstance that the libel was contained in an affidavit in such proceedings, was unimportant.
    3. Same—May be perpetuated by more thar ore.
    A particular libel may be perpetrated by more than one person.
    Appeal from order denying defendant’s application to vacate order of arrest.
    
      John Aifken, for app’lt; B. Metzger, for resp’t.
   Macomber, J.

The plaintiff was a juror impaneled in the case of the People v. Arthur J. McQuade in a criminal prosecution for bribery. The complaint charges that the defendant, in connection with James W.Vickerman, during such trial wilfully and maliciously spoke and published and caused to be published and circulated in the city of New York and elsewhere, false, malicious, defamatory and scandalous words to the effect that Rosenberg was guilty of wilful and corrupt perjury in answering certain questions put to him touching his qualifications as such juror.

Irrespective of the question whether an action may he maintained against two or more for slander, it admits of no doubt that a particular libel may be perpetrated by more than one person.

There are proper and suitable allegations constituting the libel set forth in the complaint. The statement therein that the defendants severally signed such libel does not mean that each separately published the same, but that each put his hand to the defamatory document.

Nor is the charge made by the defendants a privileged communication, if the allegations of the complaint are established. Besides the malice implied by law from the publication, the complaint charges actual malice and a wanton act on the part of the defendants to defame and in jure the plaintiff. Such being the case, and the defendants being volunteers in the legal proceedings, the circumstance that the libel was contained in an affidavit in such proceedings is unimportant;

The order appealed from should be affirmed with ten dollars costs and disbursements.

Van Brunt, P. J., and Bartlett, J., concur.  