
    John R. Bellis, Respondent, v. Richard B. Roberts, Appellant.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Libel and slander: Extent, aggravation and mitigation of damages — Aggravation by plea of justification; Trial and review — Instructions.
    In an action for slander, uttered only to plaintiff’s employer who continued to employ plaintiff after the slander, an instruction that the defendant’s answer alleging the truth of the slander might be considered by the jury in aggravation of damages is erroneous unless qualified by a further instruction that the answer should be so considered provided the circumstances evince that the reiteration of the slander in the answer was done maliciously and without probable cause for believing it true.
    Dayton, J., dissented.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury in the Oity Court of the city of New York, and also from an order denying defendant’s motion for a new trial.
    Baggot & Ryall (Albert K. Newman, of counsel), for appellant.
    Charles P. Barker (William C. Beecher, of counsel), for respondent.
   Blanchard, J.

Since the evidence upon the material issues of this ease cannot, as a matter of law, be regarded as preponderating on either side, the determination of the jury that the defendant is liable to the plaintiff for damages for slander cannot, on that ground, be disturbed. The learned trial judge, however, charged the jury that the allegation in the defendant’s answer that the charge is true may b'e considered by the jury as an aggravation of damages. This charge should have been qualified by a direction that the reiteration of the slander in the answer shall be considered in aggravation of damages, provided that “ the circumstances evince that the reiteration of the slander in the answer was done maliciously and without probable cause for believing it true.” Distin v. Rose, 69 N. Y. 122. Since the slander was uttered only to the plaintiff’s employer, who continued to employ the plaintiff as a furniture salesman after the slander was uttered, the verdict of $1,000 which the jury awarded to the plaintiff seems to have been influenced, as to its amount, by the error in the charge of the learned trial judge.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Gildebsleeve, J., concurs.

Daytoh, J. (dissenting).

Assuming that the trial judge was technically in error in charging the jury that the defendant’s answer, alleging the truth of the slander, might be considered by them in aggravation of damages, I do not discover that the exception taken relates to the nse of these words, or of the word “ aggravation.” It seems to me also that the discussion of the charge before the retirement of the jury, taken in connection with the entire charge, resulted in a fair submission of the only question at issue, viz., the amount of exemplary damages for a practically admitted slander. I do not consider the verdict excessive.

The judgment should be affirmed, with costs.

Judgment reversed, with costs.  