
    (84 Hun, 118.)
    LINK v. MOORE.
    (Supreme Court, General Term, Third Department.
    February 12, 1895.)
    Libel and Slander—Privilege—Averment in Pleading.
    In an action for divorce on the ground of adultery, an averment in the complaint that the adulterous intercourse was with one L., being pertinent and material, is absolutely privileged, and therefore does not give L. a cause of action for libel, though it was false and malicious.
    Appeal from special term, Rensselaer county.
    Action by David Link against William Moore for libel. From an order overruling a demurrer to the complaint, and from an interlocutory judgment entered in pursuance of such order, defendant appeals. Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Charles F. Doyle, for appellant.
    P. D. & Smith Niver (P. D. Niver, of counsel), for respondent.
   PUTNAM, J.

This action was brought to recover damages for an alleged libel. Defendant, on the 22d day of May, 1892, commenced an action against, his wife for adultery, and in the complaint alleged adulterous intercourse between her and the plaintiff. In this action plaintiff seeks to recover damages for said allegations in the complaint in the divorce action, which he claims were false, malicious, and libelous; and he alleges that the action brought by defendant against Ms wife was not commenced in good faith, and said libelous matter in the complaint therein was not made in good faith, but maliciously, and with intent to injure plaintiff. The defendant demurred to the plaintiff’s complaint, the demurrer was overruled by the court below, and from the interlocutory judgment entered on such decision this appeal was taken.

' It is not claimed that the allegations contained in the complaint in the action of Moore v. Moore, alleging adultery of the' defendant therein with the plaintiff in this action, were not pertinent and material. Such being the case, we are of the opinion that such allegations were absolutely privileged, and hence the court below erred in overruling the demurrer. As we understand it, allegations in the pleadings in an action, if relevant and material, although false, are absolutely privileged. If not material of pertinent, they are not privileged. The law on the subject is clearly stated by Andrews, J., in Moore v. Bank, 123 N. Y. 420-425, 25 N. E. 1048. A quotation from his opinion seems all that is necessary to be written in this case. He says:

“There is another class of privileged communications where the privilege is absolute. They are defined in Hastings v. Lusk, 22 Wend. 410. In this class are included slanderous statements made by parties, counsel, or witnesses in the course of judicial proceedings, and also libelous charges in pleadings, affidavits, or other papers used in the course of the prosecution or defense of an action. In questions falling within the absolute privilege, the question of malice has no place. However malicious the intent, or however false the charge, may have been, the law, from consideration of public policy, and to secure the unembarrassed and efficient administration of justice, denies to the. defamed party any remedy through an action for libel or "slander. This privilege, however, is not a license which protects every slanderous publication or statement made in the course of judicial proceedings. It extends only to such matters as are relevant or material to the litigation, or at least it does not protect slanderous publications plainly irrelevant and impertinent, voluntarily made, and which the party, in making them, could not reasonably have supposed to be relevant Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410; Gilbert v. People, 1 Denio, 41; Grover, J., Marsh v. Ellsworth, 50 N. Y. 309; Rice v. Coolidge, 121 Mass. 393; McLaughlin v. Cowley, 127 Mass. 316.” .

It will be found that the cases cited in the above-quoted extract fully sustain the views therein stated. Thus in Marsh v. Ellsworth, 50 N. Y. 309, Grover, J., says:

“The law is well settled that a counsel -or party conducting judicial proceedings is privileged in respect to words or writings used in the course of such proceedings reflecting injuriously upon others, when such words or writings are material, or pertinent to the question involved; and that, within such limit, the protection is complete, irrespective of the motive with which they are used.”

Beardsley, J., in Gilbert v. People, 1 Denio, 43, says:

“If what is said or written is pertinent and material to the controversy, the protection to parties, and those who represent them (for all stand on the" same ground), is absolute and unqualified, and no one shall be permitted to allege that it was done with malice.”

To the same effect, see Hastings v. Lusk, 22 Wend. 417; Garr v. Selden, 4 N. Y. 91; Perzel v. Tousey, 52 N. Y. Super. Ct. 88.

There is another class of cases where words which are not uttered by parties, counsel, or witnesses in legal proceedings are held to be privileged,—as words used in giving a character to a servant, or answering an authorized inquiry as to the solvency of a tradesman, and many other instances. In the opinion in Moore v. Bank, at page 425, 123 N. Y., and page 1048, 25 N. E., it is said in regard to such utterances: »

“In these and like cases the privilege is not absolute, but conditional; that is to say, the occasion being lawful, the communication is prima facie privileged, and rebuts the inference of malice which would otherwise arise, and imposes on the plaintiff, who prosecutes an action of slander or libel, the burden of proving that the defendant was moved by actual malicious intent in making the communication, and, failing in that, he fails in the action.”

The cases where it has been assumed or held that an action of libel may be maintained where the matter alleged to be libelous was privileged are generally of this class. As Klinck v. Colby, 46 N. Y. 427-431; Kine v. Sewell, 3 Mees. & W. 297, and many other cases that might be cited. In Dada v. Piper, 41 Hun, 254, to which we are cited by the learned counsel for respondent, the action was brought to recover damages for a libel contained in a complaint brought against plaintiff’s attorney named in the complaint alleged to be libelous, and on the trial the plaintiff, after introducing the complaint alleged to be libelous in evidence, rested, without offering other testimony. The court dismissed the complaint on the ground that the statements therein claimed to be libelous were privileged, and the judgment was affirmed on appeal. The judge delivering the opinion of the general term assumed that the action could have been maintained had the plaintiffs shown the falsity of the charges contained in the complaint alleged to be libelous, and that said charges were malicious, and made in bad faith on the part of the pleader. But this assumption was obiter and cannot be deemed an authority. Under the authorities above set out, we think the court below erred in overruling the demurrer interposed by the defendant, and hence that the judgment should be reversed, and judgment on the demurrer rendered for the defendant, with costs in this court and the court below. All concur.  