Freund, Weintraub and Coolahan. The opinion of the court was delivered by Freund, J.A.D.
[41 NJSuper Page 147] The plaintiff Louis P. Greenberg, an architect, sued the defendant Benjamin Ackerman for damages resulting from alleged defamatory statements charged to have been made "falsely, maliciously and with intent to and for the purpose of injuring the plaintiff in his good name, fame and credit." Admittedly, the statements were made on December 1, 1955 by the defendant while a witness in the trial of the case of Pestunowitz v. Hochberg in the Superior Court of New Jersey, Law Division, in which case Pestunowitz as general contractor sued the owners for the unpaid balance due on the construction price of a building, for which the plans had been drawn by the plaintiff herein, Louis P. Greenberg. In that case Ackerman, whose company had supplied structural steel, was called as a witness for the plaintiff Pestunowitz, and in the course of his testimony, in response to the questions of counsel, made three allegedly defamatory statements about the architect
Greenberg, which remarks are the basis of the present litigation.
The defendant Ackerman moved for summary judgment under R.R. 4:58 on the ground that there existed no genuine issue as to any material fact. The motion was granted. On appeal the plaintiff contends that the defendant's statements were not privileged because they were the product of ill will and malice, and that the question of their relevancy was for the jury.
It is settled that the testimony of a witness given in the course of a judicial proceeding, having some relation thereto, is absolutely privileged and thus affords complete protection against defamation actions regardless of ill will or malice. Rainier's Dairies v. Raritan Valley Farms, Inc. , 19 N.J. 552, 558 (1955); Prosser on Torts (2 d ed.), § 95, p 606. Here, there is no question that the statements were made during the course of a judicial proceeding. Thus, the only question for determination is whether they had some relation thereto.
It is, we think, significant that the statements which are the basis for this proceeding were made by the defendant as answers to questions propounded to him both on cross and on redirect examination. Further, at no time did either counsel object to any part of the answers as not being responsive or as being in any other way objectionable. 33 Am. Jur., Libel & Slander , § 181, p. 174.
The testimony here under review was:
On cross-examination (by counsel for the defendant):
"Q. Were you familiar with the provision in the specification which specified that all work shall be executed in the most thorough, substantial, neat and workmanlike manner and to the entire satisfaction on written acceptance of the architect?
A. I don't remember because there was no supervision on the job. I never seen the architect on the job.
Q. The answer is 'No.' A. All my business was done with Mr. Morris Pestunowitz, the contractor, and that was a very loosely drawn plan. In the trade we call that a 'lousy' plan.
"Q. At that time what did you say to Mr. Pestunowitz and what did he say to you about this deviation from the contract? A. If I recall right I said, 'Morris, this is a crummy plan and the deviation about the lintels is not too clear, they wouldn't suit the job, you have to provide to carry that window sash.' There was no provision. The two channels the architect called for, you could not hold the window head. I said, 'Morris, suppose I straighten them out and give them something of equal ...