
    (70 Hun, 425.)
    SHERMAN v. ROGERS.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    Slandeb—Pleading and Proof.
    In an action for slander, in calling plaintiff a thief, defendant pleaded a general denial, and alleged in mitigation of damages that, at the time of uttering the words charged, he was greatly excited, in consequence of charges made against him by plaintiff, and that the language used was consequently stronger than it would otherwise have been. Held that, under the answer, defendant could not prove that, defendant’s words related to a transaction wliich was not itself a larceny.
    
      Appeal from circuit court, Warren county.
    Action by Charles N. Sherman against Walter G-. Rogers, for slander. From- a judgment entered on a verdict in favor of plaintiff for $600 and costs, defendant appeals.
    Affirmed.
    The words charged in the complaint are: “You are a thief. You are a damn thief. You have stole a wagon from me. You are a robber, and I can prove it.” The answer was a general denial, and alleged in mitigation of damages that at the time of uttering the words charged in the complaint the defendant was greatly excited, in consequence of charges made by plaintiff against him, and the language used by him in consequence of such excitement was stronger than it would otherwise have been.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    King & Ashley, (J. M. Whitman, of counsel,) for appellant.
    Lyman Jenkins, (H. A. Howard, of counsel,) for respondent.
   MAYHAM, P. J.

The words charged in the complaint w.ere on the trial proved to have been uttered substantially as alleged. The cast* discloses that the defendant came to a shop in which the plaintiff was employed, arid asked who could give him the pr' ce of painting a wagon. Plaintiff said, “I can.” The defendant replied: “Oh! you go along. I don’t want anything to do with you. You’ve stole a wagon from me, and sold it, and I want nothing to do with you.” Defendant then started to go out of the shop, and said, ‘Who does painting here?” The answer was, “Mr. Sherman does our painting.” Rogers spoke to the man in his wagon: “Drive on, Charlie. I don’t want anything to do with that man. He is a thief. He stole a wagon from me once. He can’t have any work of mine.” Sherman said: “Hold on, you darned sucker. I will call you down some time for calling me these names. You have no right to call me these names.” Defendant said: “You are a thief, and I can prove it.” The evidence discloses no denial of this language by the defendant on the trial; but it is urged that evidence was offered by the defendant tending to show that the charges made by the defendant against the plaintiff relate to a transaction which was in itself not a larceny, and that the hearers of these actionable words knew to what transaction they related, and knew that they did not convey, or intend to convey, the charge of the crime of larceny. But we do not think that contention is justified by the proof.

It is also urged by the appellant that the court erred in excluding certain offers of the defendant, tending to prove the nature of the transaction to which the words related which are claimed to be actionable; but we fail to see that the learned trial judge committed any error in excluding evidence. The evidence excluded, which is claimed by the appellant to be error, was not proper, under the answer; and we think the court went as far as the rules of evidence justified in admitting the witnesses to answer what they understood from the charges made by the defendant.

It is also urged that the damages in this case were excessive, and that the refusal of the learned trial judge to set aside the verdict on that ground, on a motion made upon the minutes, was error. 'We do hot think that the verdict in this case was so large as to evince passion or prejudice on the part of the jury. In actions of this character the rule is well settled that the verdict of a jury cannot be interfered with by the court unless it is so large as to be evidence in itself that the jury, in rendering the verdict, was actuated by passion or prejudice, or some undue influence, and not solely by the evidence. The charge in this case was proved beyond controversy. It was not sought to be justified, and we see no circumstance, either disclosed by the evidence, or in the offers of proof made by the defendant, calculated, in any considerable degree, to mitigate the gravity of the charge made against the plaintiff. On the whole case, we see no error for which this judgment should' be reversed.

Judgment affirmed, with costs. All concur.  