
    Emily Sickles, Plaintiff, v. Abram Kling, et al., Defendants.
    (Supreme Court, Kings Special Term,
    December, 1899.)
    1. Libel — Privileged words — Demurrer.
    The court will not require a complaint in libel, against an attorney, to be made more 'definite and certain by stating “ where and under what circumstances ” the libel was printed and published, merely in order to enable the attorney to demur in ease the amended complaint should show that the libelous words were privileged because contained in a printed brief used in arguing an appeal.
    Words contained in such a brief are not unqualifiedly privileged but are privileged only where they are pertinent to the case.
    
      2. Same — Place of publication.
    Such a complaint should state the place of the publication of the libel.
    Action for libel. Motion by the defendant Kling, an attorney and counsellor at law, that the complaint be made more definite and certain by stating “ when, where and under what circumstances ” the said defendant printed and published the alleged libel.
    Abram Kling for motion;
    Alfred H. Holbrook opposed.
   Gaynor, J.:

It was argued at the bar as the reason why the complaint should be required to state where and under what circumstances ” the defendant published the alleged libellous words, that if it should thereby appear that such publication was by means of the printed brief of the defendant in arguing a case in the Appellate Division of the Supreme Court, a demurrer to the complaint would be sustained on the ground that the publication was on an occasion of absolute privilege. But the law is not so. The occasion would be one of qualified privilege only. Unless the words were pertinent to the case they would not be privileged (Odgers on L. & S. 186; Marsh v. Ellsworth, 50 N. Y. 309). If the complaint were so amended it would still be for the defendant to plead his privilege as a defense. The plaintiff cannot he required to draw a demurrable complaint.

The plaintiff has alleged when the words were published, but has forgotten to allege in what place, viz., city or town; and in this respect only the motion is granted.

Motion granted.  