
    Nathan Dallin, Appellant, v. Max Mayer, Respondent.
    First Department,
    December 6, 1907.
    Slander — calling plaintiff a thief—damage not excessive —appeal from order setting aside verdict.
    It is slanderous per se to denounce another as a thief, and a verdict of $200 recovered for such slander does not' indicate such passion, prejudice or improper motive on the part of the jury as warrants the court in setting aside the verdict, unless the evidence for the defendant be so overwhelming as to make it reasonably certain that the jury acted without proper regard therefor.
    Although the appellate court will not ordinarily interfere with the discretion of a trial judge in setting aside a verdict, yet there must be something in the record to justify the exercise of that discretion beyond the mere fact that the trial judge did not agreé with the jury in its verdict.
    Houghton, J., dissented.
    Appeal by the plaintiff, Nathan Dallin, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 19th day: of June, 1907, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial.
    
      Nathaniel Levy, for the appellant.
    
      Harry J. Sondheim, for the respondent.
   Lambert, J.:

The plaintiff, upon a conflict of evidence, was given a verdict for $200 in an action for- slander. On motion of defendant the ' learned trial court granted an order setting aside this verdict. An examination of the case, no exceptions appearing, shows that the plaintiff produced evidence tending to show that the defendant in a court room denounced the plaintiff, among other things, as a thief. This language is clearly actionable per se, and the verdict of the jury for $200 was not such as to indicate any passion or prejudice or other improper motive. In such a case there is no-legal justification for setting aside a verdict, unless the evidence to the contrary is so overwhelming as to make it reasonably certain that the jury has actéd without proper regard for the' evidence. As a general rule the action of the trial judge in setting aside a verdict, in the exercise of a discretionary power, will not be interfered with, but there must be something in the-record to justify the exercise of the discretion beyond the mere fact that the trial judge did not agree with the jury in its verdict. The discretion is one that must be exercised within rules recognized within the jurisdiction, otherwise the verdicts of juries are, in contemplation of law, final in the absence of reversible error or other conditions showing an abuse of the power vested in that body.

The order appealed from should be reversed, with costs and disbursements, and judgment ordered on the verdict, with costs.

Patterson, P. J., McLaughlin and Laughlin, JJ., concurred; Houghton, J., dissented.

Order reversed, with costs and disbursements, and judgment . ordered on verdict, with costs.  