
    James H. Warner, Appellant, v. Edward W. Southall, Respondent.
    
      Slander — when the testimony of’witnesses is to be considered by the jury in connealion with the answer.
    
    In an action brought to recover damages for slanderous words alleged to have 'been spoken by the defendant imputing the crime of arson to the plaintiff, the answer contained a general denial, set up certain facts in mitigation, and further alleged that the defendant’s barns were destroyed August 18, 1895, by an incendiary fire, and that the plaintiff had a motive for burning the barns.
    
      Oil the trial a witness testified that the defendant said that “if the reports in circulation were true, he thought that Warner (the plaintiff) knew as much about how the fire occurred as anybody; " “he said somebody, I don’t know who it was now, said Warner’s horse was not in the barn at midnight when he came home that night;” “he said Jim Warner was seen over on the south road that night; ” “he said he thought Jim Warner must know something about it.”
    
      Held' that, construing the words uttered by the defendant in the light, of the allegations contained in his answer, a question of fact was presented for the jury whether the defendant intended, by the spoken words, to charge the plaintiff with having burned the barns, and that it was an error in the trial court to grant a nonsuit.
    Appeal by the plaintiff, James H. Warner, from an order of the Supreme Court, made at the Livingston Special Term and entered in the office of the clerk of the county of Livingston on the 22d day of October, 1897, denying his motion for a new trial made on a case containing exceptions, a nonsuit having been granted by the court after a trial at the Livingston Trial Term.
    
      Edward P. Coyne, for the appellant.
    
      Charles D. Newton, for the respondent.
   Follett, J.:

This action was begun February 1, 1896, to recover damages for slanderous words alleged to have been spoken by the defendant of and concerning the plaintiff. The complaint contains two counts charging the defendant with having on three different occasions uttered words imputing the crime of arson to the plaintiff. The answer contains a general denial and also sets up facts mitigating the speaking of the words alleged to have been uttered. In the answer it is alleged that the defendant’s barns were destroyed August 13, 1895, by an incendiary fire, and that the plaintiff had a motive for burning the barns.

On the trial Charles Saxton testified that the defendant said “that if the reports in circulation were true, lie thought that Warner knew as much about how the fire occurred as anybody; * * * he said something or other about a man down where Warner kept his horse; he said somebody, I don’t know who it was now, said Warner’s horse was not in the barn at midnight when he came home that night.” James Cottrell testified that he asked defendant “how did they (your barns) get afire ? and he says, ‘ I suppose they were set afire.’ * * * I asked him if he had got suspicions about the fire, and he said Jim Warner was seen over on the south road that night ; -x- * * ]ie said he thought Jim Warner must know something about it.” On the cross-examination this witness testified, I asked him, “ How did they get afire ? and he said he thought they xvere set afire, and he said Warner was up on that road that night; that the horse wasn’t home that night.” Bradley Burnett testified, I said to defendant, a<It is too bad the horses burned up,’ and he says that—-speaking something about the fire—-lie said if all the reports were, true of what he heard, that J im Warner knew as much about the fire as any one.” Two other witnesses testified that the defendant said to them that if the reports were true “Warner knew as much about the fire as anybody.”

At the close of the plaintiff’s exddence the court granted a non-suit on the ground that the words uttered did not charge the plaintiff with the crime of arson, to which ruling an exception xvas taken. The language which the defendant used should, as against him, be construed by the allegations in his answer. It is set up in the answer as before stated, that the barns xvere destroyed by an incendiary fire and that the plaintiff had a motive for burning the barns. Construing the words uttered by the allegations in the answer, it xvas a question of fact for the jury to say whether the defendant intended by the xvords spoken to charge the plaintiff xvitli having burned the barns, and the court erred in granting a nonsuit.

The order should be reversed and a new trial granted, xvith costs to the appellant to abide the event.

All concurred.

Order denying motion for a new trial reversed and a new trial ordered, xvith costs to the appellant to abide the event.  