Opinion
December 20, 1961
In an action by plaintiff, an attorney, to recover damages by reason of the defendants' publication of alleged libelous statements in a complaint in another action ( Pearson v. Pearson, 15 A.D.2d 554), the plaintiff appeals from an order of the Supreme Court, Kings County, dated March 7, 1961, granting defendants' motion to dismiss the complaint for patent insufficiency, pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice. Order affirmed, with $10 costs and disbursements, with leave to plaintiff, if so advised and upon the payment of such costs and disbursements, to serve an amended complaint within 20 days after entry of the order hereon. The present complaint does not contain any factual allegations showing that the statements complained of were irrelevant. In a case such as this where the alleged defamatory words were published in the course of a judicial proceeding, such factual allegations are essential ( Zefferer v. Campbell, 3 A.D.2d 856; cf. Chapman v. Dick, 197 App. Div. 551, 553). Although the fact that the alleged libelous statements were published in the course of a judicial proceeding is not clearly alleged in the complaint, both plaintiff and defendants have construed the pleading as so alleging; and we accept their construction of it for the purposes of this appeal. Nolan, P.J., Beldock, Ughetta, Pette and Brennan, JJ., concur.