#### Champe S. Andrews, Appellant, *v.*Asa Bird Gardiner, Respondent.

First Department,

July 9, 1915.

Libel — libelous statements by attorney in petition for pardon — defense of privilege — application of rule of absolute privilege — when qualified privilege lost.

In an action for libel it appeared that the defendant signed a petition for the pardon of a doctor serving a sentence for attempted abortion, and annexed thereto a separate communication signed by Mm and addressed to the Governor, in which it was stated that the petition for pardon “was prepared for me and received my heartiest concurrence.”

The petition stated, among other things, that the plaintiff, who had acted as counsel before the county medical society, and had been instrumental in securing the doctor’s conviction, was impelled by dishonorable motives and did not act in good faith toward the society, wMch subsequently requested him to resign; that he had been arraigned on a charge of extortion, and had escaped conviction on a technicality, and that he *630had become thoroughly discredited in the community and at the bar, and was an unprincipled, blackmailing, depraved scoundrel. The only defense pleaded was privilege. A judgment dismissing the complaint, on the theory that the rule of absolute privilege applied to the communication, was reversed and a new trial granted. (165 App. Div. 595.) Upon the new trial the only additional evidence offered was a communication from the medical society, addressed to the Governor, subscribed by the plaintiff in the name of his firm “as counsel to the society,” and also a letter signed by plaintiff in his firm name, stating that the society desired to file the communication as a protest against the pardon. The alleged libelous letter of the defendant contained no reference to the communication of the medical society, presented to the Governor nearly five years before, nor did it expressly or impliedly put in issue any of the representations contained in the protest.

*Held,*that there is nothing in the new evidence to render inapplicable the decision made on the former appeal.

Since the facts upon which the medical society urged the refusal of the application for the pardon were not denied, and since the plaintiff merely subscribed the communication in the name of his firm as counsel, his private character did not become subject to attack.

The reason for the rule as to absolute privilege is not applicable to an *ex parte*proceeding before the Governor on an application for a pardon, and the tendency is not to extend the rule.

If the defendant was merely exercising his rights as a citizen, a qualified privilege only existed which was lost if he acted with express malice, which might be inferred from the nature and tone of his letter.

Appeal by the plaintiff, Champe S. Andrews, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of March, 1915, upon the dismissal of the complaint, on the merits, by direction of the court at the close of the plaintiff’s case.

*Louis Sturcke,*for the appellant.

*George Edwin Joseph,*for the respondent.

Laughlin, J.:

This is an action for libel. On a former trial the complaint was dismissed at the close of the plaintiff’s case on the theory that the rule of absolute privilege applied to the communication alleged to be libelous, and on appeal this court reversed the. judgment and granted a new trial (165 App. Div. 595). The case was brought to trial again, and after the impanelment of *631the jury and the opening, counsel for plaintiff offered in evidence a certified copy of the letter written hy the defendant, a copy of which is set forth in the complaint, and it was admitted that the signature and postscript to the original were in the handwriting of the defendant and that he published the letter by transmitting it to the Governor. Plaintiff then took the stand in his own behalf and testified with respect to his admission to and practice at the bar, and gave further evidence tending to show that he was and long had been a member in good standing of the Bar Association of the County of New York and of the American Bar Association.

By his testimony given on cross-examination it appears that he and his firm represented the Medical Society of the County of New York and took an active part for their client in bringing about the prosecution of Dr. Conrad for the crime of abortion of which he was convicted; that the Medical Society became aware of an application by Dr. Gomad to Governor Higgins for a pardon made on the 5th day of April, 1906, and prepared a communication in the nature of a protest or remonstrance against the granting- of the application; that this communication was submitted to the plaintiff for correction, and that he made certain corrections, and may have made corrections with respect to statements of fact based upon his knowledge acquired at the time of the prosecution, but as to whether or not he made any corrections of fact he could not say; that the communication was then signed in the name of the Medical Society by its president, vice-presidents, secretaries, treasurer and by the chairman and four other members of the board of censors, and after these signatures the plaintiff subscribed the name of his firm *as counsel to the society;*that the communication by the Medical Society was dated on the 19th of April, 1906, and was transmitted to the Governor by plaintiff with a letter signed by the plaintiff in his firm name stating that the society desired to file the communication as a protest against the pardon of Dr. Conrad, an application for which it understood was pending. The communication from the society and the letter transmitting it constitute the only evidence which was not before this court on the former appeal.

*632It is now claimed that this evidence presents the case in quite a new light and that the plaintiff by subscribing in the name of his firm as counsel the communication protesting against the granting of the application for the pardon in effect became a witness on the application, and that his private and professional character became subject to attack for the purpose of discrediting him and thereby discrediting the protest. The alleged libelous letter of the defendant was addressed to Governor Dix on the 21st day of March, 1911, and it contains no reference to the communication of the Medical Society addressed to Governor Higgins nearly five years before; nor does it expressly or impliedly put in issue any of the representations contained in the protest of the Medical Society. The complaint of plaintiff, in so far as it affected the application for pardon was with respect to his activity and methods in securing the conviction. There is nothing, therefore, in these new facts to render inapplicable the decision made by this court on the former appeal. We did not deem it necessary then to decide whether the case is governed by the rule of qualified or absolute privilege. We assumed for the purposes of the decision that the rule of absolute privilege applied the same as that applicable to the utterances of an attorney or counsel in judicial actions or proceedings; but we held that the statements defamatory of the plaintiff were so plainly immaterial and irrelevant to the question pending before the Governor that the defendant could not reasonably have supposed that they were germane to the issue and that the nature and the violence of the denunciations were such that express malice might be inferred therefrom. It is not at all clear that the rule of absolute privilege applies or should be extended to this case, because the reason for the rule is not applicable to an *ex parte*proceeding before the Governor on an application for a pardon and the tendency is not to extend this rule. (Odgers Lib. & Sland. [5th ed.] 230, 231; 18 Am. & Eng. Ency. of Law [2d ed.],1023; *Woods*v. *Wiman,*47 Hun, 362; revd., 122 N. Y. 445; *Bingham*v. *Gaynor,*203 id. 27, 32.) On the record now before us it does not appear whether defendant was acting professionally or merely as a citizen. If he was acting professionally we held on the former appeal that he wanted only to be protected *633in so far as the statements in the letter were material and relevant or he had reasonable and probable cause to believe they were material and relevant to the application for the pardon and that most of them presumptively were not and the burden was on him to show that they were, which is the most favorable view of the case that can in any aspect be taken for defendant. (See 25 Cyc. 377, 378, 383, 385, 400, 411, 412; 18 Am. & Eng. Ency. of Law [2d ed.], 1023; *Gilbert*v. *People,*1 Den. 41; *Youmans*v. *Smith,*153 N. Y. 214; *White*v. *Carroll,*42 id. 161; *Moore*v. *M. N. Bank,*123 id. 420; *Morton*v. *Knipe,*128 App. Div. 94.) If defendant was merely exercising a right of citizenship to memorialize the Governor on a matter of general public concern pending before the Executive, the rule in this jurisdiction is, I think, that a qualified privilege only existed which would be lost if he acted with express malice, which might be inferred from the nature and ardent tone of the letter, and we in effect so held before. (165 App. Div. 595; 25 Cyc. 375, 383, 385, 400, 411, 412; 18 Am. & Eng. Ency. of Law [2d ed.], 1029, 1040; *Woods*v. *Wiman, supra; Bingham*v. *Gaynor, supra; Ashcroft*v. *Hammond,*197 N. Y. 488, 496.) Until the facts upon which the Medical Society urged the refusal of the application for the pardon were denied, the character of those who communicated the information to the Governor was wholly immaterial, and, moreover, the plaintiff did not sign the communication individually as a citizen, but merely subscribed the name of his firm as counsel.

It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.