
    (21 Misc. Rep. 176.)
    SOMMERS v. CHRISTIANO.
    (Supreme Court, Special Term, New York County.
    August, 1897.)
    Libel—Arrest—Malice—Privilege.
    In an action for libel based on an affidavit made by defendant in another legal proceeding, to which he was not a party, the claim of privilege will not exempt him from arrest, where plaintiff averred, in the affidavit for the order of arrest, that defendant made the libelous charge in such affidavit falsely, maliciously, and purposely.
    Action by Lottie Sommers against Donato Christiano for damages for libel. On motion of defendant to vacate an order of arrest. Denied.
    Reno R. Billington, for plaintiff.
    William Byrnes, for defendant.
   RUSSELL, J.

The defendant claims exemption from arrest in this action for damages on account of an alleged libel on the ground that the libelous article was privileged. As the motion to vacate the order of arrest attacks the right of action itself, an examination of the right to recover upon proof of the allegations of the complaint becomes necessary to reach a conclusion here. The libelous words were placed in an affidavit made by the defendant in another proceeding brought by one Jennie'Homer, the young mother of a child, Arthur Homer, alleged to be illegitimate, who was placed, through the action of Magistrate Simms, upon legal proceedings instituted by the Society for the Prevention of Cruelty to Children, under the care of a benevolent society, the Missionary Sisters of the Third Order of St. Francis, in the city of New York. The sisters committed the care of the child to the plaintiff in this action, Mrs. Sommers, she having previously had charge of the child at the request of the mother, Jennie Homer, and an attachment having arisen betwéen the child and Mrs. Sommers. The mother, Jennie Homer, after the child had been taken from her care by the intervention of the Society for the Prevention of Cruelty to Children, instituted habeas corpus proceedings before Justice Beekman, against Mrs. Sommers, and the affidavit made by the defendant here, Donato Christiano, upon the traverse of the return to the writ of habeas corpus, furnishes the ground for the cause of action stated in the complaint. In that affidavit the defendant, Christiano, after stating knowledge of the relator and the respondent, averred, upon his own personal knowledge, “that the apartments of the said respondent at Ho. 122 Third avenue in said city are used and frequented by female persons of notoriously bad character, with the knowledge and consent of the respondent; that the said rooms are a resort for disreputable persons of both sexes, who carry on their conversation, and the females smoke, in presence and hearing of the infant, Arthur.” In the affidavit for the order of arrest, the plaintiff here avers that Christiano made that charge in his affidavit falsely, ’ maliciously, and purposely. It will be thus seen that not only is the averment that the charge is untrue, but that it was made with express malice, for the purpose of injuring, and with knowledge of its untruthfulness; and so is presented a case where, if the facts are as charged, the shield of privilege is sought to be used for the express purpose of using in court, and placing upon the court records, a written statement, under oath, designed purposely to injure the character of the plaintiff in the most serious way.

A review of some of the authorities in analogous cases may be useful. The general rule is that an affidavit used in judicial proceedings is privileged as to pertinent and material matter. Warner v. Paine, 2 Sandf. 195; Garr v. Selden, 4 N. Y. 94. Witnesses and parties may testify to anything material upon motion or trial, provided no malice and want of probable cause be shown. Streety v. Wood, 15 Barb. 105. It follows, therefore, that the ordinary presumption is that an affidavit used upon a motion is privileged, and the plaintiff must assume the burden of proving express malice; the ordinary course of proving a libelous charge and resting not being sufficient. Lovell Co. v. Houghton, 116 N. Y. 525, 22 N. E. 1066; Klinck v. Colby, 46 N. Y. 429; Hovey v. Rubber Tip Co., 57 N. Y. 125. It may be, also, that proof of the falsity of the charge in chief, with proof of the libelous article, will not be sufficient to raise the presumption of express malice. Younger v. Duffle, 26 Hun, 444; Moak, Underh. Torts, 146, cases cited. But in this case the plaintiff has by a charge assumed the burden of proving the falsehood, the malice, the intent. If she succeeds in making satisfactory proof upon those subjects, she has established her cause of action. The law will not permit the shield of privilege to prevent redress from a malicious wrong.

An examination into the facts of the truth of the charge of the defendant against the character of the plaintiff is unnecessary here, for in this proceeding the defendant does not seek to establish the ■correctness of his previous charge. He only seeks to deny malice, and the inference that he is practically a foreigner. The motion to vacate must be decided upon the verified causé of action, as alleged by the plaintiff; and, upon all the proceedings and affidavits used upon the habeas corpus matter, as well as the papers in this action, the plaintiff makes a fair case of express malice on the part of the defendant. The motion is, therefore, denied, with $10 costs.

Motion denied, with $10 costs.  