Opinion
January 14, 1971
Appeal from the Erie Special Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Henry, JJ.
Order unanimously reversed on the law and facts, with costs, motion granted and complaint dismissed. Memorandum: The alleged libel was contained in an affidavit made by defendant as one of the attorneys for a contestant in the probate of the last will and testament of one Julia Meyer Scheu in a proceeding pending in Erie County Surrogate's Court. The affidavit was submitted in support of a motion to take the testimony of plaintiff and his wife (the nominated executrix) in an examination before trial, relating to the issues created by the objections filed against the will. The statements attributed to appellant are claimed by plaintiff to be maliciously false and defamatory. In our opinion, the statements were pertinent to the proceeding in the Surrogate Court and were, therefore, absolutely privileged ( People ex rel. Bensky v. Warden of City Prison, 258 N.Y. 55; Andrews v. Gardiner, 224 N.Y. 440; Marsh v. Ellsworth, 50 N.Y. 309; Holzberg v. Rothenberg, 28 A.D.2d 875; 2 N.Y. PJI 728). The language complained of did not go beyond the bounds of reason and was not so impertinent as to destroy the privilege ( Seltzer v. Fields, 20 A.D.2d 60, affd. 14 N.Y.2d 624; Feldman v. Bernham, 6 A.D.2d 498, affd. 7 N.Y.2d 772). In our view Wels v. Rubin ( 280 N.Y. 233) relied on by plaintiff, is distinguishable and that case should be limited to its own facts ( Holzberg v. Rothenberg, supra).