Zefferer v. Campbell , 3 A.D.2d 856 ( 1957 )

In an action to recover damages for libel, the appeal is from an order granting a motion to dismiss the complaint for insufficiency. The statement upon which the action is based, as alleged in the complaint, was contained in an affidavit made by respondent, a physician, in an action for separation against the appellant. Order unanimously affirmed, with $10 costs and disbursements. ' The affidavit was made during the course of a judicial proceeding. The relevancy of the statement is necessarily implied on the further allegation in the complaint that the statement materially reduced appellant’s chances of success in the separation action so that he consented to an adverse judgment. In any event, there is no factual allegation in the complaint showing that the statement was irrelevant, an allegation which is essential in the light of the fact that the affidavit had been submitted in a legal proceeding. Present—Wenzel, Acting P. J., Beldock, Murphy, TJghetta and Kleinfeld, JJ.