Smithers v. Leslie

In an action for libel, order denying defendant’s motion for an order dismissing the complaint for insufficiency reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In our opinion, the matter complained of was absolutely privileged, as it is alleged that it was contained in an affidavit in opposition to an application to set aside a condemnation award. The burden of showing lack of relevancy was upon the plaintiff, and there being no allegations to the contrary, it must be accepted as true that the affidavits submitted in support of the motion in the condemnation proceeding contained the averments as set forth in the complained of matter. These averments the defendant was entitled to explain or rebut, and, therefore, the matter relating to the plaintiff was pertinent. Lazansky, P. J., Hagarty, Davis, Adel and Taylor, JJ., concur.