Dissenting opinion, per DANFORTH, J. own volition and for their own profit, collected information concerning the condition of traders, and this they communicated to subscribers not interested in the matter, and the court, reiterating the rule laid down in Lewis v. Chapman (supra), held that, owing to that want of interest in the person addressed, the communication was not privileged. Protection would seem to be due, therefore, to communications between persons having relationship, whether by blood or marriage, or as principal and agent, attorney and client, or as intimate friends, or as the result of any trust or confidence, provided such communications are fairly warranted by a reasonable occasion and honestly made. It follows that the term malice, in a legal sense, has no application where there is a just cause or occasion for speaking the words complained of, although under other circumstances they would constitute a slanderous charge. (Jones v. Givin, Gilbert's Cas. 185; Washburn v. Cooke, and other cases, supra.) In discussing this question the learned judge, already quoted, says: "When the circumstances show that the defendant may reasonably be supposed to have had a just and worthy motive for making the charge, then the law ceases to infer malice from the mere falsity of the charge and requires from the plaintiff other proof of its existence." (Lewis v. Chapman, supra.) The facts found by the jury, and above adverted to, bring the case at bar within the principle and the rule thus stated. The occasion was the courtship of the plaintiff, and the object of the letter was to give information of his character. It was written in confidence and in friendship to one sought by him in marriage, and thus having a vital interest in the subject, and written also in response to her request. These conditions seem to answer the first branch of the proposition laid down by Judge SELDEN in the Chapman Case (supra), and by Judge ALLEN in the Sunderlin Case (supra), and also bring the communication directly within the other branch of the rule. If we regard the communication as volunteered, it still remains that Dora, the party to whom the communication was made, had an interest in it, and the writer stood, by Dissenting opinion, per DANFORTH, J. reason of her intimate friendship and request, in such relation to her as to make it, at least, proper that the defendant should warn and put her on further inquiry. I think the communication was privileged by the occasion and by the position of the writer, and the court committed no error in refusing to charge otherwise. Whether the letter was in excess of privilege so conferred, I need not inquire, for such question was for the jury and it was not raised at the trial. As to the second cause of action, the counsel for the appellant asked the court to charge: "That the charges set out in the second count of the complaint have been substantially proved and stand uncontradicted, and the plaintiff is entitled to recover, and the only question for the jury is one of damages. The court declined so to hold and charge, and plaintiff's counsel duly excepted." In this there was no error: 1st. The allegations of the complaint are not admitted by the answer, but denied, and the plaintiff went into evidence to sustain the issue. 2d. Between the plaintiff's witnesses and the evidence of the defendant there was a conflict. 3d. The communication to Cameron was given in confidence, at his request, and under circumstances which might very well lead to the conclusion that Cameron, as the friend or even agent of the plaintiff, was by him put upon an inquiry, suggested by the letter just before read to him by the plaintiff. (Weatherstone v. Hawkins, supra; King v. Waring, 5 Esp. [N. P.] 13.) The statement was not voluntary, and the occasion of speaking, as well as the words spoken, were to be considered. The submission of it to the jury was proper (2 Greenl. on Ev. § 421), and the language of the judge as applied to it was not inappropriate. (Weatherstone v. Hawkins, supra.) 4th. Nor was it necessary to plead specially that the communication to Cameron was privileged. The defendant's answer alleged that the communication, such as it was, to Cameron was drawn out by himn was a confidential com 66 Dissenting opinion, per DANFORTH, J. munication and was made without malice and without any intent to injure the plaintiff," and in the belief of its truth, and denied, among other things, the allegation of malice contained in the complaint. This goes to the very root of the action. If true, it shows there was no malice; and as formerly the defense of privilege was open under the general issue (Hastings v. Lusk, supra; Howard v. Thompson, 21 Wend. 324), so it is now under the denial. The learned counsel for the appellant argues that the plea of justification set up as a separate defense was insufficient, because, he says, "the matters alleged are stated to have been known at the commencement of the action, and not at the time of uttering or writing the words attributed to the defendant." No objection was made to evidence on that account, and the question was only presented to the trial judge as he was about to give the case to the jury, and then in these words : "That the court should hold as a matter of law that there is no sufficient plea of justification set up in the defendant's answers, and the proofs have not sufficient force to sustain a justification." The proof shows that the defendant had heard the matters referred to when she wrote the letter, and no objection was made that the evidence was not competent under the answer. But the request when made was double and required the court to pass upon the sufficiency of the evidence to sustain the justification as well as its final presentation upon the pleadings. One branch was for the jury, and upon both grounds the refusal of the court may stand. The other questions presented by the appellant were properly disposed of by the General Term. The judgment appealed from should, I think, be affirmed. All concur with EARL, J., for reversal, except DANforth, J., dissenting. Judgment reversed. SICKELS-VOL. LXVI. 22 Statement of case. 111 170 121 505 111 170 158 406 MAX GOEBEL, Respondent, . SOPHIA IFFLA, Individually and as Trustee, etc., Defendant. LEO SCHLESINGER, Purchaser, Appellant. F. died in 1853, leaving a widow and one son, who afterwards married and had one child. By his will F. devised his real estate to his wife, in trust, for the enjoyment of herself and his children during her life, remainder to his children, and in case they died without issue before his wife, then to the testator's brothers and sisters. The widow accepted the trust and, on notice to the testator's son, applied to the Supreme Court for authority to mortgage the real estate for the purpose of preserving and improving it. An order was made permitting the widow, as trustee, to borrow $900, and in that character to execute a bond and mortgage to secure its payment. The order declared that upon the execution and delivery of the mortgage it should be a first lien on the land, the same as if executed by F. in his lifetime, and without regard to the persons who may or shall eventually become seized or possessed of any estate or interest in said land under said will." A mortgage was executed in conformance with the order, which purported to convey all the estate F. had in the land during his lifetime and all the estate of the widow, individually, and as trustee and beneficiary, and also of the devisees in and under the will. In an action to foreclose the mortgage, the trustee, the son, such of the brothers and sisters of the testator as were living, and the children of those who had died, were made defendants, and were alleged to "have or claim to have some interest in or lien upon the said mortgaged premises or some part thereof, because or by reason of the provisions of said will in the event of the death of the son of the testator," and his child and any other children born to him dying prior to the testator's widow. It was also alleged that such interest or lien was subsequent and subordinate to the lien of plaintiff's mortgage as would also be the rights and interests of said defendants if they accrued The defendants were all duly served and judgment by default was entered, which directed a sale and that the surplus should be invested by the trustee, and upon the happening of the contingency mentioned in the will should pass to the devisee or persons entitled thereto pursuant to the provisions of the will. The purchaser at the foreclosure sale refused to complete his purchase on the ground that the expectant estate of the testator's brothers and sisters has not been divested, and in case of the death of his son without issue during his mother's life, the gift to them would take effect. In proceedings to compel said purchaser to complete his purchase, held, that all the parties in interest having been made parties to the foreclosure suit and thus given an opportunity to pay off the mortgage or defend against it, the judgment was final; that the purchaser Statement of case. would acquire a good title and should be compelled to complete his purchase. As to whether on an application made under the statute (Chap. 275, Laws of 1882, and chap. 26, Laws of 1884, amending part 2, chap. 1, tit. 2, art. 2 of the Revised Statutes "relating to uses and trusts ") by a trustee to mortgage real estate held by him for the purpose of raising funds to be applied in preserving or improving it, not only the interest of the trustee and beneficiaries of the trust, but also the rights and interests of those who may be entitled in remainder on the expiration of the trust, may be covered, quære. While prior incumbrancers are neither necessary nor proper parties to an ordinary action of foreclosure, when made parties under the general allegation that they claim an interest as subsequent purchaser, incumbrancer or otherwise," a decree will not affect them. 64 If facts upon which the plaintiff in a foreclosure suit relies to defeat a prior title are stated, the defendant whose title is thus assailed may demur to the complaint upon the ground that the plaintiff has no right to bring him into court to try his title in such an action. Where, however, such facts are stated as will, if admitted, subject the title of a defendant to the plaintiff's mortgage and to the relief sought, and such defendant makes default or answers, and judgment goes against him, he will be estopped from afterwards setting up his interest as against the judgment, and what binds him in this respect cannot be questioned by any other person. (Submitted October 2, 1888; decided November 27, 1888.) APPEAL from order of the General Term of the Supreme Court in the first judicial department, made March 28, 1888, which reversed an order of Special Term denying the plaintiff's application and granted the application to compel Leo Schlesinger, the purchaser at a foreclosure sale therein to complete his purchase, and granted the application of said purchaser to be released from his purchase. (Reported below, 48 Hun, 21.) Martin Ficken, senior, devised his real estate to Sophia, his wife, in trust for the enjoyment of herself and his children during her life, remainder to his children, but in case they died without issue before his wife, then to his brothers and sisters. He died in 1853, seized in fee of certain premises in the city of New York, and leaving Sophia, his wife, and one child, Martin Ficken, surviving. He afterwards married and had one child, Winona Ficken, a minor. |