
    ABRAHAM NEWFIELD, Plaintiff and Respondent, also Appellant, v. HAYMAN COPPERMAN, Defendant and Appellant, also Respondent.
    I. LIBEL.
    
    1. Privileged Communications.
    
      (a.) The fire marshal of the city of Brooklyn, acting on information received by him from a party other than the defendant, subpoenaed the defendant to appear before him upon an inquiry in relation to a fire which had occurred in Brooklyn, and upon defendant appearing, asked him various questions and reduced the answers (which were relevant and material to the subject matter of the inquiry), to the form of a written deposition, to which he swore the defendant:
    Held,
    An action of libel would not lie against the defendant, founded on statements contained in the deposition, tending to charge plaintiff with arson, and this, even conceding such statements to be false.
    II. MALICIOUS PROSECUTION.
    
    1. Want op probable cause, proof op, necessary.
    
      (a.) Taking the plaintiff’s case that the above deposition was used as the foundation of a groundless prosecution j yet, as no proof of want of probable cause was given, the complaint was properly dismissed.
    Before Curtis, Ch. J., Sedgwick and Speir, JJ.
    
      Decided May 8, 1877.
    Appeal from judgment on verdict in favor of plaintiff.
    An order had been made at special term on a case by the judge who tiled the cause, granting a new trial, and at this time was argued the appeal of plaintiff from the order granting a new trial.
    The complaint alleged that on or about May 30, 1871, a fire broke out in the premises of another person and spread tp and destroyed the property of the plaintiff, on which he had insurance ; that the defendant, on June 7, before Patrick Ready, Police Fire Marshal of Brooklyn, did falsely and maliciously make the following oath or deposition to wit:
    City of Brooklyn, County of Rings, ss. :
    
    Hayman Copperman, sworn, says: I live at 192 Canal street, New York, and know Abraham Newfield (meaning this plaintiff), who kept a wadding factory at 64 and 66 Boerum street, Brooklyn. About two months ago, on a Saturday night, after ten o’clock, Newfield came to' my house with Samuel Joseph, and asked me to allow them to come in ; Wagner and Schneider’s furniture factory was on fire at the time; and they said they thought my home was burning, and they came to see; I let them in, and they and I stood by the window looking at the fire; while there, Newfield said to Joseph—“ How would wadding burn ? Suppose my factory got on fire, how would it burn?” Joseph said, “ Why do you ask me ? Do you want to set your factory on fire?” Newfield said “There were so many fires now that it was very dangerous, and after a while he would see how things would be, ” Joseph said New-field had had several before. I asked Joseph why he asked that question of Mr. Newfield, and he replied, that he asked it because Newfield had several fires in his place before. Before that fire, I knew Mr. Newfield well; he told me he wanted to dispose of his factory, but could not; he said he offered it to his foreman, but the foreman would not take it. I have known Mr. Newfield for two and one half years in New York ; never did business with him ; he owes me nothing, and I have no ill feeling towards him ; that is all I know about the matter.
    Hayman Copperman.
    Sworn to before me, this 7th day of June, 1871,
    P. Ready, Police Fire Marshal.
    
    
      That defendant intended by said oath or deposition to maliciously and falsely charge that the plaintiff had willfully set fire to his property, with intent to defraud the insurance companies who had made insurance ; that “in consequence ” of said deposition the plaintiff “ had been summoned before said fire marshal, and on examination had before him said charge was by said lire marshal, who had jurisdiction in the premises, duly dismissed as unfounded and made without any reasonable or probable cause, to the damage of the plaintiff.”
    The answer was a general denial, and as a distinct defense, that the defendant appeared before the fire marshal in obedience to a subpoena, theretofore duly issued by the fire marshal, and which was served upon defendant; that thereupon said defendant was examined under oath by the fire marshal touching said tire, who took down defendant’s answers in writing, which writing defendant believed to be the deposition set out in said complaint.
    On the trial, it appeared by plaintiff’s case, that the defendant had been called to the office of the fire marshal by a communication addressed to him and signed by the fire marshal. When he called, the fire marshal showed him the deposition set out in complaint. Thereafter the fire marshal made investigation into the cause of the fire that destroyed plaintiff’s property. The fire marshal said charges had been made against the plaintiff for the fire. After an examination of the plaintiff, no further legal proceedings were taken against him.
    The fire marshal was called as a witness, and proved that the investigation was founded upon information, received by him from one Davies ; that thereupon he caused a subpoena to be served upon the defendant, who appeared under it, and upon request stated the matter set out in the deposition, which was reduced to writing by the fire marshal and signed by the defendant.
    
      The plaintiff testified that the matters stated in the depositions weré untrue. The defendant and Joseph, named in the deposition, swore that they were true.
    The judge on the trial held that there was no cause of action for malicious prosecution shown, but the plaintiff might recover as for libel, provided the jury should find the evidence sustained it. He therefore sent the case to the jury as one of libel, and the jury found for plaintiff.
    Upon a motion for new trial the judge considered that the defendant was not liable as for libel, inasmuch as it consisted of his testimony as a witness in a judicial proceeding as to matters pertinent to the inquiry, and granted a new trial.
    
      Lewis B. Sanders, for plaintiff.
    
      James C. Spencer, for defendant.
   By the Court.—Sedgwick, J.

On the allegations of the complaint, and the testimony of the fire marshal, as to which there was no contradiction, it appeared he had competent jurisdiction to examine witnesses in the investigation pending before him ; that the defendant did not set on foot that investigation, but simply gave testimony in answer to questions of the fire marshal, after a subpoena had been served. The matters stated were relevant and material to the subject matter of the inquiry. I therefore think that the learned judge was right in holding that no action will lie upon the falsity of the evidence. The cases cited fully support the position (Perkins v. Mitchell, 31 Barb. 461; Marsh v. Ellsworth, 50 N. Y. 309 ; Gan v. Selden, 4 Id. 91).

If the matter of the alleged libel were irrelevant and immaterial to the charge of arson against the plaintiff, then clearly it was not a libel. There is no charge of crime and no tendency to convince any one that a crime was committed.

I am further of opinion, that if the contents of the deposition are libelous, being statements of some matters of remote circumstantial evidence, and if the signing, at the request of a judicial officer, is such a writing that the oral slander becomes a libel, and if the communication to the public officer, is a publication technically (as to which questions no decision is meant to be intimated), still, so far as the case for the plaintiff went, the deposition was the complaint or the foundation of the charge, and the damage arising from it to the plaintiff was only its tendency to set upon foot and establish a groundless prosecution. There was no proof of a general publication, or a publication beyond its being made before a judicial officer, and its being shown to the plaintiff himself (Lyle v. Classon, 1 Caines, 580; Waistel v. Holman, 2 Hall, 173 ; Snyder v. Andrews, 6 Barb. 43). In such cases, I understand the law to be (Howard v. Thompson, 21 Wend. 319), that plaintiff must show a want of probable cause for the prosecution itself. If there were probable ground for the prosecution, this defendant suffered no damage by the false statement of circumstantial evidence. There would be injuria absque damnum.

For this reason I think, that after it appeared, as it did on the trial, that there was no proof of want of probable cause for the institution of the investigation, the complaint should have been altogether dismissed, and not held as in an action for the libel.

There was no question upon the trial as to whether the libel having been under an oath competently administered its falsity could have been established by a less quantv/tn of evidence than would have been necessary to prove the defendant guilty-of perjury under an indictment.

The order granting a new trial should be affirmed, and the judgment on the verdict be reversed with costs to the defendant to abide the event.

Curtis, Ch. J., and Speir, J., concurred.  