Weinberger v. Zelenko

Cotillo, J.

The plaintiff is an attorney. The defendant Cohen, through the defendants Zelenko and Wald, instituted an action in the City Court of the city of New York against the plaintiff to recover damages in an action based on money had and received. In the City Court action the defendants filed a bill of particulars that contained the following statements: “ That accompanying said written agreement, defendant [the plaintiff in this action] orally represented that the Saratoga Lake Corporation a concern in which defendant and his brother’s brother-in-law were financially interested and dominated owned land which was not under water; that one Ben Benish had sold five units out of his holdings in said corporation at $2000 per unit making a profit of $1000 in each unit, that the shares were worth $2000 per share, that one Dr. Cohen had paid $1750 per unit for 5 units, that the aforesaid moneys entrusted by plaintiff to defendant would be doubled; that the property of the Saratoga Lake Corporation was free and clear of encumbrances; that immediately upon plaintiff’s discovering the falsity of the representation of defendant’s said statements, he forthwith rescinded and demanded the return of said moneys from the defendant who has never repaid same to plaintiff. * * * defendant was plaintiff’s attorney for the purpose of the investment aforesaid and plaintiff relied on defendant accordingly.”

This action is one to recover for libel. The bill of particulars is part of a complaint. (Davison Coal Co. v. National Park Bank, 201 App. Div. 309.) The words alleged to have been libelous being part of a judicial proceeding and pertinent to the issues are privileged. (Campbell v. New York Evening Post, 245 N. Y. 320.)

Motion to dismiss granted.