I find myself unable to concur in the opinion or in the conclusion in this case. The plaintiff appears to have been a member of the board of trustees of school district No. 16, town of Mooers, Clinton county, and the defendant was a resident taxpayer of such district. On the 21st day of November, 1910, the defendant verified a petition, addressed to the Commissioner of Education, praying for the removal of all of the members of the board of trustees, alleging that “ said trustees are unfit and incompetent persons, intellectually, morally and temperamentally to hold such office; that said Isaac Morah can barely read and write, and has practically no education, and is over sixty years of age; * * * that said Isaac Morah has for many years been addicted to the use of intoxicating liquors as a beverage, and frequently has been intoxicated in public places in the village of Mooers Forks, and on one occasion, about a year *116ago, said Isaac Morah was intoxicated in said village in a public place, to wit, on the street near J. M. Gorkins’ store, and he accosted your petitioner in a loud and boisterous manner, and wanted to attack and assault your petitioner, but did not succeed in doing so.” It appeared from the petition that Mr. Morah was not appointed to the office of trustee until the 22d day of October, 1910, and the petition, made about one month from that time, made absolutely no charge of any misconduct on his part during the time that he had been in office, nor was there any charge which in any manner brought the case within the jurisdiction of the Commissioner of Education. Section 95 of the Education Law (Consol. Laws, chap. 16; Laws of 1910, chap. 140), which is the only provision of law giving the Commissioner of Education power to remove school officers, provides that “whenever it shall be proved to his satisfaction that any trustee * * * has been guilty of any wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in State funds, or wilfully disobeying any decision, order or regulation of the Regents or of the Commissioner of Education, said Commissioner may, by an order under his hand and seal, ■* * remove such school officer.” The Commissioner very properly held that he had no power to remove Mr. Morah, and the petition, in so far as it related to him; was dismissed.
Mr. Morah then brought this action to recover damages for the libel uttered against him in the petition, and the case went to the jury upon a. charge which submitted the good faith of the defendant in making the charges. The jury has found a verdict of damages against the defendant, and the latter appeals to this court: The opinion, from which I must dissent, holds in effect "that the matters set forth in the petition were privileged, and that the judgment should be set aside and the complaint dismissed, and the cases of White v. Carroll (42 N. Y. 161); Marsh v. Ellsworth (50 id. 309), and Youmans v. Smith (153 id. 214) appear to be relied upon as authority for this result. These cases do not, in my opinion, justify the conclusion reached, for the reason that the defendant did not make these libelous accusations against the plaintiff in the prosecution of a judicial proceeding, but in a matter in which it is *117conceded by his own attorney that he made no charges which gave the tribunal jurisdiction. The Commissioner of Education could not take jurisdiction under the fact set forth in the petition, any more than he could have acted if the defendant had charged that the plaintiff had been guilty of grand larceny or murder, and no one, I believe, will contend that a charge such as. is suggested made before the Commissioner of Education would tend in any manner to constitute a privileged communication, or to shield the defendant from responsibility for the libel. It may be conceded that if the Commissioner of Education had jurisdiction of the subject-matter of the petition the proceeding would be judicial in its character, but how this can operate to relieve the defendant from the responsibility for his accusations made in a petition to a tribunal of exceedingly limited statutory jurisdiction for the purpose of instituting such proceeding is by no means clear. There was no judicial proceeding of any kind until facts had been presented which gave jurisdiction. The defendant did not set forth a single fact in his petition, so far as this plaintiff is concerned, which in any manner tended to establish that the plaintiff had done or neglected to do anything which brought him within the jurisdiction of the Commissioner of Education in a proceeding for removal from office, and there was no more reason for the defendant to publish the alleged moral delinquencies of the plaintiff to the Commissioner of Education than there was for publishing them to the public generally. The Commissioner had no concern with any matter which was alleged, and as the libelous allegations could not and did not constitute a foundation for a judicial proceeding it seems to me that the reason for the rule of privilege has no bearing whatever upon the case now before us, and that the learned court in permitting the case to go to the jury upon the question of the defendant’s good faith in making the charges was, to say the least, all that could be fairly asked for in this case, and that no question of the weight of the evidence is open to the consideration of this court.
In White v. Carroll (supra) two physicians of opposing schools were called as witnesses at different times upon the question of the competency of one Jay Phillips at the time of *118making his will. The defendant on being examined as a witness was asked if some other physician had not attended Mr. Phillips during a certain period. He' denied such knowledge, and on the question being put more emphatically replied: “Not as I know of; I understand he had a quack, I would not call him a physician; I understood that Dr. White, as he is called, had been there.” On the trial of an action for libel based upon these words the court instructed the jury that they might determine “ whether the defendant, at the time he so testified and used the words in question, believed the words so used by him were relevant or pertinent to the question then on trial,” and the jury brought in a verdict in favor of the plaintiff, which Was sustained on appeal, the court holding that the “ question was most emphatically a question for the jury; and I think it was submitted to the jury as favorably for the defendant as he had a right to expect or ask.” This comes a long way from holding that the defendant’s answer was privileged as a matter of law, and that was a case in which the witness was present under compulsion and made the accusation only after the question being pressed upon him, while in the case now before us the defendant was the primary actor; he was attempting to institute a proceeding for the removal of the plaintiff from office, and, as we have seen, his proceeding never reached the stage of being a judicial proceeding. Marsh v. Ellsworth (supra) approved the doctrine in the case last above mentioned, but held under the particular facts of the ° case that the objections filed to the discharge of a party in bankruptcy, although containing allegations of a libelous nature, were privileged; that it was necessary to the proper litigation of questions that parties and their attorneys should be free to set up objections involving criminal allegations against witnesses and parties so long as the matters alleged were pertinent to the issues. But in the case now before us, as we have pointed out, there was no issue. The Commissioner of Education, in his relation to the facts alleged in the petition, had no more concern with them than John Doe or Richard Roe or any other citizens or groups of citizens. Youmans v. Smith belongs to the same class of cases as Marsh v. Ellsworth, and has no bearing upon a state of facts such as were before the court in *119the trial of this action. It seems to me that the defendant was not privileged to libel the plaintiff in a communication to the Commissioner of Education; that the only grounds on which he had a right to invoke the action of that officer are stated in section 95 of the Education Law as found in chapter 140 of the Laws of 1910, and, having failed to bring himself within' the provisions of the statute, he took the same risks of an action for libel that he would have taken if he had addressed his communication to the Pope or the President of the United States, or to any other person.
I think the judgment and order appealed from should he affirmed.
Judgment and order reversed, with costs, and complaint dismissed, with costs, the particular findings of fact of which the court disapproves being the findings of fact that the defendant did not justify the charges made in his petition, and that he did not believe that the charges made were relevant to the proceeding instituted.