
    N. Y. SUPERIOR COURT.
    Abraham Newfield, plaintiff, agt. Hayman Copperman, defendant.
    
      Malicious prosecution—libel—new trial.
    
    To sustain an action for malicious prosecution the gravamen of the charge must be that the plaintiff has been improperly made the subject of legal process to his damage. The form of the prosecution is immaterial, hut there must be a legal process of some kind to which the plaintiff was ■ subjected and forced to submit. Where this element is missing, the action must fail.
    A mere note or letter of a magistrate or officer requesting a person to call, is not a prosecution.
    Where the action was partially tried as one for malicious prosecution, but finally changed and submitted to the jury as an action of libel, on the ground that the complaint seemed to contain sufficient averments for that purpose, and the state of the proof seemed to call for such change: Held, on a review of the case and authorities upon this motion that this view of the case was erroneous, and the defendant was entitled to a new trial, with leave to plaintiff to amend his complaint.
    The true doctrine and principles of libel stated.
    
      At Special Term.
    
    Motion by defendant for a new trial on a case.
    
      James C. Spencer, for the motion.
    
      Samuel Hirsch, opposed.
   Freedman, J.

This action was instituted and attempted to be tried as an action for a malicious prosecution, but was finally submitted to the jury as an action for libel. After a careful re-examination of the evidence and of the rulings made in the course of the trial, I still adhere to the view then expressed, that the action cannot he maintained as one of malicious prosecution. In an action of malicious prosecution the gravamen of the charge is that the plaintiff has improperly been made the subject of legal process to his damage. The form of the prosecution is immaterial, nor is it material that the plaintiff was prosecuted by an insufficient process or before a court not having jurisdiction of the matter, for a bad indictment may serve all the purposes of malice as well as a good one (1 Greenl. on Ev., § 449). But there must be a legal process of some kind to which the plaintiff was subjected and forced to submit. This element is entirely missing in the present case. A mere note or letter of a magistrate or officer requesting a person to call, is not a prosecution.

The next question, therefore, is whether the action was properly turned into one for libel. Under the view which was then taken of the law applicable to this case, no opportunity being had to make a critical examination, and the counsel for the respective parties citing no authorities, the complaint seemed to contain sufficient averments for that purpose, and the state of the proof seemed to call for the change; and if such view was correct, defendant had no business to be surprised by the ruling which permitted the change. After full consideration of the authorities submitted by the defendant on this motion, however, I have become satisfied that such view was not strictly correct. The true doctrine is, that words spoken or written, in a judicial proceeding, by any person having an interest therein, or a duty to perform therein as witness or counsel, are not only conditionally, but absolutely privileged, and no action will lie therefor, however false, defamatory or malicious they may be, provided they were pertinent and material to the inquiry before the court or officer (Perkins agt. Mitchell, 31 Barb., 461; Marsh agt. Ellsworth, 2 Sweeny, 589; Same case, 1 id., 52; Suydam agt. Moffat, 1 Sandf., 459; Warner agt. Paine, 2 id., 195; Gilbert agt. The People, 1 Denio, 43; Garr agt. Selden, 4 N. Y., 91). And the term “ judicial proceeding,” is not to be restricted to trials of civil actions or indictments, but includes every proceeding before a competent court or magistrate in the due course of law or the administration of justice, which is to result in any determination of action of such court or officer (Perkims agt. Mitchell, supra).

That the statements contained in the affidavit sworn to by the defendant before the fire marshal of Brooklyn were pertinent and material to the inquiry instituted by said officer as to the origin of the fire which had destroyed plaintiff’s factory, cannot be denied. Aside, therefore, from the question as to the sufficiency of the allegations of the complaint as a complaint for libel, it was not enough to instruct the jury that upon proof to their satisfaction of defendant’s malice and of the intentional falsity of his sworn statement, they were at liberty to render a verdict for the plaintiff. If, for the contents of that statement, plaintiff can maintain an action of libel at all, which under the decisions referred to may perhaps be considered to be still an open question, it is clear that he can only do so upon proof, which takes his case out of the operation of the general doctrine above alluded to. Proof that the defendant maliciously contrived to induce the fire marshal to institute the inquiry and to subpoena him, the defendant, and that the defendant thus expressly manufactured the occasion, on which he bore false witness against the plaintiff, may perhaps have that effect. But without expressly deciding the point, it is sufficient for the purposes of this motion to say, that the case was not submitted to the jury upon this theory, but upon another and insufficient theory.

The motion for a new trial must be granted, with costs to defendant to abide the event, and plaintiff may have leave to amend his complaint, if he should be so advised. Order to be settled upon a notice of at least two days.  