Rosenberg v. Nesbitt

14 N.Y. St. Rep. 248

Opinion

Macomber, J.

The plaintiff was a juror impaneled in the case of the People v. Arthur J. McQuade in a criminal prosecution for bribery. The complaint charges that the defendant, in connection with James W.Vickerman, during such trial wilfully and maliciously spoke and published and caused to be published and circulated in the city of New York and elsewhere, false, malicious, defamatory and scandalous words to the effect that Rosenberg was guilty of wilful and corrupt perjury in answering certain questions put to him touching his qualifications as such juror.

Irrespective of the question whether an action may he maintained against two or more for slander, it admits of no doubt that a particular libel may be perpetrated by more than one person.

There are proper and suitable allegations constituting the libel set forth in the complaint. The statement therein that the defendants severally signed such libel does not mean that each separately published the same, but that each put his hand to the defamatory document.

Nor is the charge made by the defendants a privileged communication, if the allegations of the complaint are established. Besides the malice implied by law from the publication, the complaint charges actual malice and a wanton act on the part of the defendants to defame and in jure the plaintiff. Such being the case, and the defendants being volunteers in the legal proceedings, the circumstance that the libel was contained in an affidavit in such proceedings is unimportant;

The order appealed from should be affirmed with ten dollars costs and disbursements.

Van Brunt, P. J., and Bartlett, J., concur.