
    Henrietta Woods, App’lt, v. Erastus Wiman, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed December 2, 1890.)
    
    L Libel—Privileged communication.
    Whether the public statutes of the state shall be changed is a matter of general interest and of common concern, and information given to the governor for the purpose of influencing his action on a bill which has passed the legislature, is prima facie privileged; but if the communication contains defamatory matter and is unnecessarily published to others, such publication is not privileged.
    2. Same—Evidence.
    Whether one urging the passage of a bill making such change in an argument before the governor, gave copies of a pamphlet containing defam atory matter to persons in the executive chamber who did not appear to have any connection with the hearing, is a question of fact for the jury* and it is error not to submit it to them under appropriate instructions.
    Appeal from a judgment of the general term of the second judicial department, affirming a judgment dismissing the complaint and entered on a nonsuit.
    When the bill, which became chapter 672 of the Laws of 1886, relating to imprisonment for debt, was pending in the legislature, Mr. Edward P. Wilder, a lawyer, published a pamphlet in opposition to its passage. Mr. Gilbert R. Hawes, a lawyer, was retained by the debtors imprisoned in Ludlow street jail to advocate the passage of the measure, and to advance this purpose one McDonald, then imprisoned in that jail on an execution against his person, took from his fellow prisoners statements of the causes and circumstances of their confinement, which he reduced to writing and delivered to Mr. Hawes. A few copies of these statements wore printed in pamphlet, bearing this title:
    “ Prisoners now in Ludlow street jail.
    “A true statement of the facts in each case where a party has been imprisoned for debt, in answer to the pamphlet issued by E. P. Wildei.’"
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    The pamphlet contained the following, among other, statements :
    
      “In re Terbence Monett.
    “ About nine years ago sued on breach of promise to marry, which he never made. An open secret that plaintiff had similar relations for money with five or six others, but being married men, their evidence unattainable at trial; sympathy for her sex, awarded $6,000 damages. His interest sold by sheriff at sale and bought by plaintiff for $5,500. The matter then slept for eight years, when an attorney, a friend of plaintiff, dug it up. Both plaintiff and defendant had always lived in Brooklyn, and still so in December, 1884, and the suit and judgment had in Brooklyn •court. Instead of issuing execution against him where they both lived and where the court was that granted judgment, they had him decoyed from Brooklyn to New York, whither they had brought over the execution against the person, thus cutting off from bail in place of domicil; further embarrassing, as Hew York sheriff requires bondsmen within Ms limits; also saved plaintiff expense of support in Brooklyn jail, and to increase disadvantages of defendant omitted to credit him on judgment with $5,500 bid for his interest in property at sheriff’s sale by plaintiff eight years before, so he was thus arrested on full amount, $6,000, of judgment. Thus debarred from ability to give bail, has been eighteen months in jail. On trying to go out under fourteen day act, could not produce written vouchers for expenditure of a few hundred dollars eight or nine years ago; so judge said oral evidence was not sufficient, and denied application. His wife’s friends offer to subscribe balance really due on judgment, but plaintiff says that, as she cannot have him, his wife (now of nine years) shall not So this hind of a woman actually separates man and wife to be gratified in her spiteful feelings; but, worst of all, public law aids such.”
    
    The bill excited much public interest and discussion, and a committee was appointed, of which the defendant was chairman, to advocate its passage and approval by the executive. After the bill had passed the legislature, the governor fixed a day for hearing a public discussion of its merits. Eor the purpose of influencing the executive action, and as an answer to the pamphlet put forth by Mr. Wilder, a few copies of the statements of the prisoners as taken by Mr. McDonald were carried to the capítol, and one of them was submitted by the defendant to the executive with resolutions adopted by the chamber of commerce, and a memorial signed by several hundred of the citizens of New York and Brooklyn, advocating the bill.
    It is alleged in behalf of the plaintiff that the defendant gave a copy of the pamphlet to the governor, and distributed several copies to persons in the executive chamber, for which alleged publications she seeks to recover damages.
    On the trial the plaintiff was nonsuited, upon which a judgment was entered which was affirmed at general term.
    
      J. Stewart Ross, for app’lt; W. W, MacFarland, for resp’t.
    
      
       Reversing 14 N. Y. State Rep., 526.
    
   Follett, Oh. J.

Whether the public statutes of the state shall be changed is a matter of general interest and of common concern, and information given to the governor for the purpose of influencing his action on a bill which has passed the legislature isprima facie privileged; 'but if the communication contains defamatory matter and is unnecessarily published to others, such publication is not privileged. Coffin v. Coffin, 4 Mass., 1; Rex v. Creevey, 1 M. & S., 273 ; Odgers on L. & S., 2d ed., 186; Folkard’s Starkie L. & S., 202, 205; Newell on Def., 471; Towns. L. & S., 4th ed., 217.

Had the pamphlet been given only to the executive, we should have no difficulty in sustaining the judgment on the ground that there was no evidence of malice, without proof of which an action could not be sustained for such a publication. But one witness testified thathesaw the defendant give copies of the pamphlet to persons in the executive chamber who did not appear to have any connection with the hearing which was then being held; and though he was strongly contradicted by persons who had every facility for observing what occurred, yet whether the defendant did distribute the pamphlet as testified by this witness was a question of fact, and the court erred in not submitting it to the jury with appropriate instructions. For this error the judgment must be reversed and a new trial granted, with costs to abide the-event.

All concur, except Haight, J., absent.  