Opinion
April, 1900.
F.E.M. Bullowa for plaintiff.
Abram Kling for defendant.
In England the decisions, including the case against the great advocate Scarlett, afterwards Lord Abinger (Hodgson v. Scarlett, 1 B. Ald. 232), for a long time left it uncertain whether the privilege of counsel in respect of their statements in the conduct and trial of causes was absolute or qualified. The question was put at rest in 1883 by the Court of Appeal in Munster v. Lamb (11 Q.B.D. 588), where it was decided to be absolute. But in this state the privilege is only a qualified one, i.e. it extends only to statements which are material and pertinent to the case (Marsh v. Ellsworth, 50 N.Y. 309; Youmans v. Smith, 153 N.Y. 214). If counsel keep within the facts of the case they are protected by the privilege of the occasion no matter what they say, or however forced their inferences, deductions, suggestions, surmises, criticisms or characterizations from the facts may be. I speak thus broadly subject to correction, there being no case which goes so far in point in this state; but it seems to me that it must be so. Where else can the line be drawn? A counsel's position is one of great difficulty, and he has special need to have his mind clear of all anxiety. A wide latitude is justly and necessarily given to him in order to insure a full hearing and the doing of justice. It would be impossible for him to do his duty if he could be questioned for the strength of his expressions or the exaggeration of his arguments, deductions or inferences. That they are extreme, or only specious or colorable, is not the test, but whether they are pertinent. He loses the protection of his privilege only by going actually outside the case, and making statements which can by no argument or inference be pertinent.
The words here cannot be construed as imputing unchastity to the plaintiff with Sickels. Her relationship to him which they refer to must be the relationship disclosed by this defendant's affidavit in the appeal papers, viz., that of marriage. Does the reference to her and Allen being "related together" before he appointed her agent of the property, mean a relation similar to that stated to have been afterwards contracted with Sickles, i.e., a sexual one, or does it mean only the actual relation in respect of money, property and fiduciary trust disclosed by the said appeal papers? The general rule as to ambiguous words is that the jury are to determine their meaning. But it does not seem to me that it applies to words of counsel spoken on an occasion of privilege. If they are capable of a meaning which makes them pertinent to the case, then they are pertinent and privileged, and that meaning must be taken. Counsel cannot be required in the performance of their duty to choose their words so nicely that they cannot bear more than one construction. To put them under such embarrassment would curtail that freedom of speech which is necessary to the administration of justice. And if the said words can mean only an illicit relation, I think counsel had the right within the facts of the case to state that as his inference to the court. Such an inference was at least colorable. The question under consideration was whether it was more probable that the plaintiff was the real owner of the property, though the title was not in her name, than that she had been merely put in possession of it by Allen as his agent. To surmise and argue on this question of probability that the facts, including the neglect of the plaintiff from 1895 to 1898 to ask for and obtain her deed if she was the purchaser, and the separation of Allen's wife from him, and her failure to join with him in his conveyance to Seaver, rather indicated an illicit relation between him and the plaintiff, by means of which she got into possession, would not be going outside of the case. An argument of counsel is only the expression of his view and opinion to the court, and the statement in the brief of counsel which is here complained of was the expression of his view and opinion on the facts.
The motion for a new trial is denied.