Second Department, May, 1921. [Vol. 197 emphasize the point that Marcella Man was the particular person. The later words in the clause "if his said wife shall survive him" and " during the life of the widow of said Albon P. Man" are descriptive of the person and not of the character in which she was to take. The relationship could not have been the sole motive of the provision, as the bequest was to the individual Marcella Man by name, and not to her simply as wife or widow. The instant case is even stronger than the case of Davis v. Kerr (3 App. Div. 323), cited by the attorney for Marcella Man. Paraphrasing the language of Mr. Justice WILLARD BARTLETT, at page 325: "Taking the whole trust clause together, it seems to me clear that whether she spoke of the wife or the widow of her son she meant Marcella Man, who was his wife at the time the will was made." In this quotation the court has simply substituted the name of Marcella Man for Zelia B. Sinclair. If Marcella Man had predeceased Albon P. Man the trust created by this clause would have terminated and Albon P. Man would have taken the property absolutely. Therefore, no other "widow" than Marcella Man could have been intended. This is supported also by the last sentence of the 3d clause of the will, which reads as follows: "But in case of the expiration of the trust in favor of said Albon P. Man otherwise than by his death, then immediately upon such expiration the said trustees shall pay the principal of said trust fund to said Albon P. Man, to whom in that event I give the same absolutely." The court, therefore, sustains the claim of Marcella Man under the 3d clause of the will of Mary E. Man. The plaintiff, Henry H. Man, desires to be relieved of his trust. The court holds that this relief should be given upon the passing of his accounts. The court, therefore, will provide in the decree for the appointment of a referee to take and state the account of the plaintiff trustee and his former cotrustee, and will make provision for the appointment of a substituted trustee in the final judgment. Mr. Almeth W. Hoff, attorney at law, at No. 34 Nassau street, New York city, will be appointed referee to take and state the accounts of the trustee. App. Div. 551] Second Department, May, 1921. WILLIAM K. DICK, ROBERT A. CHAPMAN, Appellant, v. WILLIAM Libel Respondent. Second Department, May 13, 1921. - suit to compel specific performance of agreement to return corporate stock allegation in answer charging plaintiff with conversion of funds of corporation and purchase of bonds therewith is privileged scope of rule relating to absolute privilege. In a suit to compel specific performance of defendant's agreement to return stock of a corporation held as security, in which the plaintiff alleges that he is the president and treasurer and has the sole control and management of the corporation, the future of which will be greatly jeopardized if such management and control are interfered with, and also that he is the owner of a large portion of the outstanding bonds and is liable as an indorser on corporate notes, an allegation by the defendant that the plaintiff has appropriated to his own use large sums of money of the corporation and purchased bonds of the corporation therewith which he now claims to own, a demurrer to which was sustained, charges the plaintiff with the crime of grand larceny, but in view of the allegations of the complaint is relevant and pertinent and, therefore, absolutely privileged and does not render said defendant subject to an action by the plaintiff for libel. The rule relating to absolute privilege is sufficiently broad to extend to all matter otherwise libelous alleged or introduced in an action, which although ineffectual as a defense may by any possibility under any circumstances and at some stage of the proceeding be or become material or pertinent. APPEAL by the plaintiff, Robert A. Chapman, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of January, 1921, granting defendant's motion for judgment on the pleadings. Jehial M. Roeder [Joseph Hirschman and Alfred Frankenthaler with him on the brief], for the appellant. Henry F. Cochrane, for the respondent. Order affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice J. ADDISON YOUNG at Special Term. BLACKMAR, P. J., MILLS, PUTNAM, KELLY and Jaycox, JJ., concur. Second Department, May, 1921. The following is the opinion of the court below: YOUNG, J.: [Vol. 197 This action is for libel and the defendant moves for judgment on the pleadings. It appears from the complaint that prior to the commencement of this action the plaintiff instituted an action in this court against the defendant for the specific performance of an agreement under which the defendant held certain shares of capital stock of the Robert Chapman Company as security for a loan, which were to be returned to the plaintiff upon payment of the loan, and that plaintiff had tendered the balance due and demanded the return of the stock, which was refused, and that the defendant threatened to vote the stock at the annual meeting of the stockholders of the corporation and secure control of the election of directors and of the management of the corporation. The complaint in that action also alleged as follows: "That the said corporation was founded by the plaintiff; that the plaintiff is its president and treasurer; and that the plaintiff has had the sole control and management of the said corporation and is its active executive and managerial head and that the future of the said corporation will be greatly jeopardized if the management and control by the plaintiff is interfered with. That plaintiff organized and carried on said business. That the plaintiff is the owner of nearly one-third of the capital stock of the said corporation, that of the $76,000 bonds issued and outstanding, the plaintiff owns $50,000 and that of the remaining indebtedness of the said corporation aggregating $55,000 and represented by notes, the plaintiff is the endorser and liable for the payment of the same." The complaint in said action also alleged that the acts and conduct of defendant threatened irreparable injury to plaintiff unless he were enjoined and that the plaintiff had no adequate remedy at law and prayed the specific performance of the agreement, the return of the stock to plaintiff upon payment of the indebtedness, an injunction restraining him from holding the stock and restraining the corporation from holding any meeting until the redelivery of the stock to the plaintiff. The complaint in the case at bar alleges that in that action the defendant caused to be served an answer which contained Second Department, May, 1921. App. Div. 551] the defamatory matter complained of. The particular paragraph containing the alleged libel is as follows: "On information and belief, between the 30th day of June, 1915, and the 19th day of June, 1920, the plaintiff has appropriated to his own use large sums of money, the property of the Robert Chapman Company, the amount of which cannot be determined except by an accounting, and has used and appropriated the money of the said Robert Chapman Company to purchase bonds of the said Robert Chapman Company, which bonds so purchased with the money of the said Robert Chapman Company the plaintiff, contrary to his right and duty and in violation of the trust relation which he bears to the said company now claims and holds as his own property. The amount of the funds and money of the said Robert Chapman Company so used and appropriated by the plaintiff cannot be ascertained and determined except by an accounting." The complaint also alleges that the libelous matter was intended to and did charge the plaintiff with the crime of grand larceny. The complaint further alleges that he caused a demurrer to be interposed to the defense and counterclaim containing the libel and that the demurrer was brought on for argument and was sustained, and that the libelous statements were wholly incompetent, irrelevant and immaterial by way of answer or defense or counterclaim in said action, and were not pertinent to the issues therein. The pleadings in the former action are annexed to the complaint, as well as the demurrer and order sustaining it, and are made a part thereof. It is contended by defendant that the matter complained of as libelous was absolutely privileged and that it did not, as alleged by plaintiff, charge the crime of grand larceny. The latter contention is, in my opinion, clearly unsound and requires no further consideration. The matter complained of, in my opinion, clearly charges a crime, and unless privileged, is libelous. The serious question involved is that of absolute privilege. Upon this motion, of course, the allegation of fact contained in the complaint must be taken as true, as though a demurrer had been interposed. This, however, does not include the allegation that the alleged defamatory matter was impertinent and not privileged, which is, of course, a mere conclusion of law. Second Department, May, 1921. [Vol. 197 Privilege is usually a matter of defense, but if the complaint shows an absolute privilege on its face, it is demurrable (Corwin v. Berkwitz, 190 App. Div. 952), and, therefore, susceptible to this motion for judgment. Nor should the defendant be barred from asserting the defense of privilege because of the order sustaining the demurrer in the former action (Dada v. Piper, 41 Hun, 254); nor by its recital that the demurrer was confessed. Such confession adds no more to the effect of the order than if it were granted after strenuous opposition. Whether the demurrer was sustained because the alleged counterclaim did not state a cause of action, or that it was one which could not be interposed, or that the allegations were insufficient as a defense, does not appear. Assuming it was sustained upon all the grounds asserted by plaintiff, the order in no way determines that the alleged libelous matter was not and could not possibly be relevant or pertinent to the issues; notwithstanding such determination, they might still be pertinent. In other words, in my opinion, the question of absolute privilege of the matter complained of is not to be tested as a mere matter of pleading. If it could possibly be pertinent or material the privilege is absolute. The rule as to absolute privilege is a broad and liberal one, designed for the protection of counsel, parties and witnesses in a judicial action or proceeding. The rule itself is well settled, but its application to particular facts alleged has led to much controversy and is often difficult. One of the earliest cases, decided nearly a century ago, is Ring v. Wheeler (7 Cow. 725). In that case the alleged slander was uttered by the defendant in addressing referees in a former action in which plaintiff had been a witness and charging the plaintiff with perjury. The case came before the court upon a motion in arrest of judgment, and the court held that the words proved were actionable in themselves unless justified by the occasion and manner of speaking, but said that on the motion in arrest they could not look out of the record and were not in a position to determine whether the charge made by defendant was pertinent to the cause or not, because the defendant had omitted to put the facts constituting his defense upon the record. The court, therefore, |