
    Amasa R. Moore, App’lt, v. The Manufacturers’ National Bank of Troy and Samuel O. Gleason, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 7, 1889.)
    
    1. Libel—Circumstances as of mitigation—When considered.
    When in an action for libel, all the circumstances of the publication were proved by the plaintiff, but no circumstances of mitigation were pleaded in the answer, the court properly declined to charge that none could be considered by the jury.
    2. Same—Privileged communications.
    Where both the party making and the party receiving a communication, have an interest in it, it is privileged, and when the circumstances make it so, the presumption of malice ceases, no matter what the language.
    
      Matthew Hale, for app’lt; H. L. Fur smart, for resp’ts.
   Learned, P. J.

This is an appeal by the plaintiff from a judgment in his favor on a verdict and from an order denying a motion to set the verdict aside as for insufficient damages. The action was for libel. The complaint contained two counts. ' The first charged that the defendant published concerning the plaintiff a certain writing entitled “ a partial statement in detail,” etc., containing the false and libelous words, etc. It then set forth certain matters alleged to be libelous which charged that the cashier of the bank by collusion with plaintiff had drawn certain moneys.

The second count charged defendants with issuing a certain writing called a “ bill of items” containing false and libelous words, and setting forth these words, which were the same with those in the first count.

The answer is general, and is not special to each count. It avers that the cashier of the bank gave a bond with sureties; that after his defalcation the bank sued the bond; that in such suit the bank served a bill of particulars, set forth at length, which in fact contains the alleged libelous words.

The answer further alleges in mitigation that the bank served such bill believing it to be true and without intent, to injure the plaintiff, etc.

On the trial it appeared that, after the action against the sureties had been commenced, Judge Daniels, whose wife was an administratrix of .one of the sureties and was a defendant, called at the bank for the particulars of their claim, and was there given the paper set up in the first count. The plaintiff insisted and asked the court to charge that in regard to this publication no circumstances of mitigation were pleaded, and none could be considered by the jury. The court declined to charge in that form and the plaintiff excepted.

Now it is true that the answer does not set up any facts in mitigation of this publication to Judge Daniels, the language of the answer being confined to the bill of particulars. It may be, therefore, that no facts which had not been pleaded could have been proved. But no question seems to have been raised as to any offer of proof. The ■circumstances of the publication were proved by plaintiff. And it was only on these circumstances that any question ■of mitigation arose. To say that no circumstances of mitigation could be considered would be to say that the jury in assessing damages must disregard all the circumstances of the transaction which had been proved by the plaintiff himself. This would not be proper.

The plaintiff had proved not merely that defendants had published the libel, but he had proved how, to whom and to what extent they had published it.

Now to charge that the jury might not consider any circumstances of mitigation, would have directed them, if they chose, to punish the defendants as heavily as if they had given publicity in a newspaper to these charges, of their mere voluntary act. The judge therefore properly declined to charge in that form.

The defendants claim that these papers were privileged communications, which claim the plaintiff denies. This point should be considered.

In Klinck v. Colby (46 N. Y., 427) the proper meaning of a privileged communication is said to be “that the occasion on which it was made rebuts the inference arising prima facie from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite or ill-will, independent of the circumstances in which the communication was made.”

And again, “a written communication between private persons concerning their own affairs is prima facie privileged.” And again: “When both the party making and the party receiving the communication have an interest in it, it has never been doubted that it was privileged.” See also Ormsby v. Douglass, 37 N. Y., 477; Altwill v. Mackintosh, 120 Mass., 177.

It is unnecessary to cite other cases, as the rule is so clearly stated above.

Now under the definitions thus given it is plain that both the statement given to Judge Daniels, and the bill of particulars were privileged communications. Indeed we do not understand that the plaintiff claims that they were not privileged communications, so far as they referred to Wellington’s acts. But the plaintiff insists that, where these communications stated that Wellington did these acts by collusion with the plaintiff, they were not privileged as to plaintiff.

it seems to us doubtful whether such a distinction can be made. For it will appear-by the definitions, that not the contents of the publication, but the circumstances under which it is made, give the privileged character. If the communication is not defamatory, then there is no need of asserting the privilege. But when the circumstances make the communication privileged, then the presumption of malice ceases, no matter what the language.

The plaintiff on this point relies on four cases, Hastings v. Lush, 22 Wend., 410; Ring v. Wheeler, 7 Cow., 725; Gilbert v. People, 1 Denio, 41; Marsh v. Ellsworth, 50 N. Y., 309. These cases are all of the same character and all refer to arguments of counsel in actions and the like. The-principle laid down is stated in the last case; and therefore we need not examine the others. “A counsel or party conducting judicial proceedings is privileged in respect to words and writings used in the course of such proceedings reflecting injuriously upon others, when such words are pertinent and material to the questions involved; and that within such limit the protection is complete irrespective of the motive with which they are used” ‘ ‘ the privilege under consideration, it will be seen, is much more extensive than in many other cases, where communications are termed privileged, as in giving the character of servants etc.” “In the latter the extent of the privilege is to repel the presumption of malice * * * and bar a recovery in the absence of proof of express malice.”

It is in regard to the privilege of counsel, as it is called, that it is said that it can only be claimed when the words are pertinent. Because that privilege is complete, irrespective of motive. Counsel'are not liable even for actual malice, provided their words are pertinent.

But as is pointed out in the case cited above, in the other class of privileged communications the privilege only throws, on the plaintiff the burden of proving express malice. Hence, when we look at the definitions above given of such privileged communications, we find that it is the occasion on which the communication is made, and the interest of the parties in the subject which make such communications privileged. Nothing is said in those cases as to the language being pertinent or material. Because the privilege is not complete, irrespective of motive. And any proper circumstances may be shown to the jury as evidence that there was express malice. But when the occasion and the interest of the parties are such that the communication comes within the definition above given and therefore is privileged,, then the prima facia presumption of malice is removed.

Now in this case both of these communications were made under such circumstances and between such parties that they were privileged. That is to say, not that defendants were free from every liability, whatever their motive; but that the circumstances removed the prima facie presumption of malice and threw on the plaintiff the burden of proving malice expressly.

In this view of the case we think the plaintiff has nothing of which to. complain. He rested his pose simply on proof of the publication of these two writings under the circumstances which have been briefly stated above. It seems to us that on that proof these were privileged communications; that is to say, they were made under such circumstances that the presumption of malice, which ordinarily arises, did not exist. True the defendants might have been more cautious and might not have explained the manner in which Wellington took the money. True, also, that if the plaintiff could show express malice, the defendants would be liable; for they were not clothed with that privilege of counsel stated in Marsh v. Ellsworth. They were only free from that presumption of malice which ordinarily arises from the publication of a writing injurious to another.

But the court allowed the jury to inquire whether or not the defendants had acted with malice, or whether they had given these statements in good faith, even without proof of express malice. If it should be urged that the introduction unnecessarily of plaintiff’s name was of itself some proof of express malice, the plaintiff has had the benefit of that view, and the jury have given him a verdict.

In the case of Prescott v. Tousey (53 Supr. Ct., 56), it was held that the libelous matter in a bill of particulars was absolutely privileged, as being in a step necessary in a legal proceeding. This case followed those above cited, which have principally arisen on arguments of counsel. If the plaintiff claims that the present case does not come within the protection of such absolute privilege, because the language affecting him was not pertinent, still the general right of privilege remained, which has been explained in citations from Klinck v. Colby, and the burden of proving malice rested with the plaintiff.

We do not think it was error to admit the pleadings in the action of the Bank v. Enos and others; that being the suit in which the bill of particulars was furnished. The papers showed the existence and the character of the action in which such bill was furnished.

It does not seem to us that the proof of the names of the directors of the defendant was material in any way; and the admission was not such an error that a new trial should be granted therefor.

There is a remaining question as to the adequacy of damages. The publication of the first paper was simply the giving of it to Judge Daniels. No other publicity was made by defendants. The publication of the second was by serving it on attorneys in the action. Certainly the publication in neither case was extensive. We see no-reason to think that the jury erred in the amount which they awarded.

Judgment affirmed, with costs.

Land on and Ingalls, JJ., concur.  