
    Lally v. Emery.
    
      (Supreme Court, General Term, Fourth Department.
    
    February, 1891.)
    1. Slander—Intent to Charge Crime—Province oe Jury.
    In an action for slander in speaking words concerning plaintiff with the alleged intent of charging him with the crime of rape, or with an attempt to commit such crime, the question whether the words were spoken with such intent is for the jury.
    2. Same—Privileged Communications.
    In an action for slander in uttering words alleged to have been intended to charge plaintiff with rape, or with an attempt to commit rape, it appeared that the parties were soldiers in the United States army, and that the words were spoken to a member of the same company with defendant. Held, that such words were not absolutely privileged, so as to authorize a dismissal of the complaint on that ground, but the question of the good faith of defendant should have been submitted to the jury.
    Appeal from circuit court, Jefferson county.
    Action by Peter J. Lally against Jonas A. Emery for slander. The plaintiff alleged the speaking of certain words of and concerning him by the defendant, which were alleged to have been intended to charge the plaintiff with having committed the crime of rape, or attempting to commit that crime. Both the plaintiff and defendant were soldiers in the United States army, and the person to whom the words were spoken was a member of the same company with the defendant. On the trial the court held that the words alleged and proved were privileged, and dismissed theplaintiff’s complaint with costs. Plaintiff appeals therefrom, and from an order denying a motion for a new trial, made on the minutes of the trial judge. For former report, see 8 N. Y. Supp. 135.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      Hannibal Smith, for appellant. F. H. Peck, for respondent.
   Martin, J.

Whether the words alleged and proved to have been uttered by the defendant of and concerning the plaintiff were spoken with the intent to charge the plaintiff with the crime of rape, or of hn attempt to commit a rape, was, we think, for the jury. Weed v. Bibbins, 32 Barb. 315; Upton v. Upton, 4 N. Y. Supp. 936. We think the court erred in holding that the words alleged and proved were absolutely privileged, and in dismissing the complaint on that ground. Under the circumstances developed by the evidence in this case, the questions whether the defendant uttered the words proved in good faith, and without actual malice, were for the jury. If it were assumed that the words spoken were privileged,.still, the privilege, if any, was a qualified one; and, if they were not spoken in good faith, or were uttered with actual malice, it would constitute no defense to the action. Admitting that the court might properly have held that, prima facie, the speaking was privileged, yet the question of the defendant’s good faith, his belief in the truth of the statements made, and whether actual malice existed, were all questions for the jury. In Klinck v. Colby, 46 N. Y. 427, Judge Folger, in speaking of the question of privileged communications, says: “As a' general proposition, it may be said that the question of whether a publication is a privileged communication is one for the jury; that is to say, the court may determine whether the subject-matter to which the alleged libel relates, the interest in it of the defendant, or his relations to it, are such as to furnish the excuse. But the question of good faith, belief in the truth of the statement, and the existence of actual malice remains, although the court should hold that, prima facie, the communication was privileged. And this question is one for the jury.” The same doctrine was held in Hamilton v. Eno, 81 N. Y. 122; Byam v. Collins, 111 N. Y. 143, 19 N. E. Rep. 75. We are of the opinion that the case should have been submitted to the jury, and that the court erred in dismissing the complaint. Judgment and order reversed on the exceptions, and a new trial granted, with costs to abide the event.

Merwin, J., concurred.

Hardin, P. J.,

(concurring.) In the opinion delivered in this ease, when it was here on a former appeal, (8 N. Y. Supp. 135,) it was assumed that the motive and intent of the defendant in using the words proved were for the jury to ascertain upon all the evidence. That, assumption is still applicable to the case, and therefore I join in a reversal.  