
    Robert A. Wright, Respondent, v. Matthew H. Gregory, Appellant.
    
      Slander—actual malice — a repetition of the slander—attemping to haw the accused discharged from his employment—comersations out of the presence of the plaintiff, inadmissible — measure of damages.
    
    Where an. action is brought to recover damages because of an alleged slander, any act or language of the defendant, tending to prove malice upon, his part in regard to the particular slander which is the subject of the action, may be proved with a view of enhancing the damages.
    A plaintiff who has been charged by the .defendant with theft is entitled to prove, as indicating actual malice, that the defendant said to him that he would follow the thing out (meaning the alleged theft) if it cost him §100. Declarations or conversations of the defendant, which took place out of the presence of the plaintiff, are not admissible on the defendant’s behalf, when not required to refute statements of the plaintiff in respect to such conversations. Where a defendant, who has charged the plaintiff with theft, persistently attempts to have the plaintiff dismissed from his employment, and subsequently repeats the slander, a recovery by the plaintiff of damages to the extent of §600 cannot be deemed excessive.
    Appeal by the defendant, Matthew H. Gregory, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18fch day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on the 19th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages occasioned by an alleged slander.
    
      Edwin G. Davis, for the appellant.
    
      James 0. Cropsey, for the respondent.
   Willard Bartlett, J.:

. The plaintiff was an expressman in the employ of the Long Island Railroad Company. The alleged slander consisted in charging him with theft, because he had removed two packages belonging to the defendant from a seat on a ferry boat on which he was a "passenger going from Hew York to Long Island City. The reason assigned for taking 'the packages was that they were apparently abandoned, and it was said that they were merely picked np by the plaintiff and delivered to. a deckhand -on the ferry boat for safekeeping,- The jury doubtless found this to be the true explanation of the occurrence, inasmuch as they rendered a verdict in favor of the plaintiff, assessing the damages at $600.

The appeal raises only three questions. The first relates to the admission of testimony on the part of the plaintiff as to an interview with the defendant a fortnight after the utterance of the alleged slander which was the subject-matter of the action. . The plaintiff was asked: “ What did Mr. Gregory say to you this day you met him, about two weeks after the occurrence?” and he answered as Tollo ws: “I said, ‘Why don’t you let me alone ; why do you keep following me up all the time; I have a wife and three children; I have to support them.’ He said,- ‘ Why didn’t you think of them before you stole them packages.’ I said, ‘ Do you still insist on saying I stole them packages ? ’ He said, ‘ I do.’ He said, ‘ I will follow this thing out, if it costs me a hundred dollars, to see you discharged.’ I begged him to let me alone; that I was a poor man.”

This evidence, was admissible to prove actual malice and thus enhance the plaintiff’s damages. In Fry v. Bennett (28 N. Y. 324, 328) the court held that, within the rule allowing proof of the repetition of the slanderous charge to show malice beyond that implied from its original utterance, “ Any act or language of the defendant tending to prove malice on the part of the defendant in regard to the particular slander or "libel, which is the subject of the action, may be proved.”

The second question is whether the court erred in excluding evidence offered in behalf of the defendant as to what he said to the assistant superintendent of the express department of the Long Island Eailroad Company, in Long Island City, in reference to the occurrence on the ferry boat, The trial judge allowed the defendant to state all that occurred between him and the assistant .superintendent while the plaintiff was present, but refused to allow him to tell what happened at a subsequent interview in the plaintiff’s, absence. In This refusal there was no error,. The plaintiff had not sought to prove anything about the second conversation, and there was nothing in regard to' it which required refutation by the defendant.

The third and last question is in respect to the amount of damages, which the learned counsel for the appellant characterizes as grossly excessive. If a smaller sum had been awarded we should have been better satisfied with the verdict in view of the fact that the actual inconvenience or pecuniary injury suffered by the plaintiff appears to have been small, and that the defendant was not wholly without excuse for annoyance at the disappearance of his packages under the circumstances disclosed by the record.. Nevertheless, the proof of a persistent intention on the part of the defendant to procure the plaintiff’s dismissal from employment two weeks later, accompanied by a repetition of charge of theft, was such evidence of malice that we cannot reduce the amount of the recovery.

The judgment and order must be'affirmed, with costs.

AH concurred.

Judgment and order affirmed, with costs.  