
    Delia Foley, Respondent, v. Henry F. Xavier, Appellant.
    
      Action for abuse of process — a charge which, after the exclusion of evidence to show , that the plaintiff committed the offense for which she was, arrested, submits that question to the jury is improper — semble, that the evidence was competent.
    
    In an action, brought to recover damages resulting from an alleged abuse of process, it appeared that the defendant, who had received some scurrilous anonymous cards and letters through the mail, charged, the plaintiff with writing the same and obtained .a warrant for her arrest; that, as alleged by the plaintiff, the defendant, in abuse of the warrant, caused the plaintiff to be brought to his. house and to there sign a confession of the authorship of the communications while she was under the influence of fear occasioned by the • situation and of threats made by the defendant.
    The trial court refused to allow the defendant to prove upon the trial that the anonymous cards and letters were written by the plaintiff, but, at the defendant’s request, he charged the following proposition: “That in passing upon the question whether the admission or retraction contained in the letter she wrote and signed were her voluntary acts and as bearing upon the determination of that issue, the jury have a right to consider whether in making that confession she confessed what was true or confessed what was false, and also, in that connection, that in passing upon the question of damages, and as to whether she was humiliated and as to any injury done her by reason of her writing those letters, it is material for them to consider whether when she wrote those letters she was telling the truth, and that such evidence, bearing upon that point as is in the case, is for their consideration in that connection.”
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed, for the reason that the effect of the charge was to submit to the jury the decision of the question of the plaintiff’s complicity in the making and sending of the anonymous communications as bearing legitimately upon the determination, oí the voluntary or involuntary.nature of her confession aud upon the measure of damages, although the. proof which the defendant had offered upon the subject to show the plaintiff’s authorship' of the communications had been excluded.
    
      Semble, per'Hirsohbebg, P. J., that the evidence offered by the defendant wag competent. ■ -
    Appeal by" the defendant, Henry F. Xavier, from a judgment of y the Supreme Court in favor of the plaintiff, entered in the office of '.the clerk of the county of Westchester on the 15tli day of October, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of October, Í902, denying the defendant’s motion for a new trial made -Upon the minutes.
    
      Roger M. Sherman, for the appellant.
    
      Oddell D. Tompkins [George G. Appell and William A. Walsh with him on the brief], for the respondent.
   Hirschberg, P. J. :

. The case cpmes for review on a bill of exceptions. The plaintiff’s recovery is- sought to be sustained upon the theory that the action is brought to obtain damages resulting from the abuse of a lawful process. The defendant, a priest of the Roman Catholic church, had received some scurrilous anonymous cards and letters through the mails. He had in his possession some specimens of the plaintiff’s handwriting, and these he submitted to an expert) togethet with the anonymous communications: Receiving from the experi a report to the effect that all the writing was in the same hand, he . obtained a warrant for the arrest of the plaintiff under the provisions of section 559 of. the .Penal Code, and the judgment recovered . against him is based on the charge that in abuse .of that process he had succeeded in extorting from the plaintiff a written confession of . guilt and a retraction of the scandalous allegations contained in the anonymous communications.

- It appears that after the process was issued and delivered to an officer for execution, the defendant caused the plaintiff to be .brought to his house, and that she there signed the’ confession and. retraction, either- voluntarily or under the influence of fear occasioned by -the situation,-and by threats ■ made by the defendant. The controversy was presented for solution to the-jury by the learned trial justice as follows: “ It is claimed that the plaintiff was, by the abuse of this process, forced to confess, as I have stated, her authorship of the letters referred to and of the cards, and to make certain retractions of the statements contained in those cards and those letters. It is claimed by the defendant that whatever she did in the matter was her voluntary act — that she was not influenced or coerced, but did whatever she did do voluntarily.”

The defendant endeavored to prove upon the trial that the 'anonymous cards and letters were written by the plaintiff. The proof offered for this purpose was excluded, to which exclusion the defendant excepted, and the court in the main charge to the jury instructed them that the question of the authorship of the anonymous communications was not to be considered. He said: “ The question will only confuse the case and is not relevant, and, therefore, it was excluded by me.” At the defendant’s request, however, lie charged the following proposition, viz., “ that in passing upon the question whether the admission or retraction contained in. the letter she wrote and signed were her voluntary acts and as beaming upon the determination of that issue, the jury have a right to» consider whether in making that confession she confessed what was true or confessed what was false, and also in that connection that in passing upon the question of damages, and as to whether she was humiliated and as to any injury done her by reason of her writr ing those letters, it is material for them to consider whether when she wrote those letters she was telling the truth, and that such evidence, bearing upon that point as is in the case, is for their consideration in that connection.” The letters referred to in the latter part of this request are obviously the. confession and retraction, as there Was no proof received directly tending to show that the plaintiff did in fact write the anonymous cards and letters, and their authorship was not admitted by her, unless in the confession and retraction.. The effect of the charge made as requested was, therefore, to submit to the jury the decision of the question of the plaintiff’s complicity in the making and sending of the anonymous communications as bearing legitimately upon the determination of both the question of the nature of her confession, whether voluntary or otherwise, and the question of the measure of damages, although the proof upon the subject which the. defendant had offered had been rejected and excluded. . It is unnecessary to pass at this time upon the relevancy of the excluded evidence. I am personally inclined to the view that it was' proper and competent; but cer'tainly a judgment cannot.be sustained which may be based upon a finding of fact to which the excluded proof was directly addressed, and which in the absence of -evidence upon the subject could have' iio material or intelligent support. _ . . .

The .judgment and order must, therefore,, be reversed.

Bartlett, Woodward and Jenks, JJ., concurred; Hooker, J., not voting.

Judgment and order reversed and new trial granted, costs to abide -the event. '  