
    Christopher Clarke, Respondent, v. Richard K. Fox, Appellant.
    
      Slander—under a, general denial the defendant cannot prove that his funds have been misappropriated by the plaintiff—justification — malice.
    
    Where an action is brought to recover damages resulting from slander, and the answer interposed is a mere general denial, the plaintiff, who had occupied a position of trust in the employ of the defendant, and had had a right to draw-checks upon the defendant’s bank account, cannot be asked, upon cross-exami- . nation, whether he received the money upon a check which he himself had. drawn in this manner.
    Dpon such a state of the pleadings the fact, if it existed, that the plaintiff had misappropriated the money of the defendant, would not be admissible as evidence to prove a justification; and where there is no charge or claim that the plaintiff stole money from the defendant, and the fact, if it existed, was unknown to, and could not have influenced, the defendant, the evidence would not be admissible upon the question of malice.
    Appeal by the defendant, Richard K. Fox, 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 4th day of February, 1S96, 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 28th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    The jury rendered a verdict in favor, of the plaintiff for $2,000. The plaintiff alleged that the defendant had slandered him by saying “ They (meaning the plaintiff and Tremper) robbed me (meaning defendant), and Clarke (meaning plaintiff) robbed me (meaning-defendant) right and left.” The plaintiff had been employed by the defendant as general manager, having in that capacity, as he testified, the right to draw checks on the latter’s bank account.
    
      Charles J. Patterson, for the appellant.
    
      J. Stewart Ross, for the respondent.
   Per Curiam:

The action is slander, alleged to have been spoken, in the months of March and April, and at other times, in the year 1893, of and concerning the plaintiff. The answer is a general denial. The proof upon the part of the plaintiff was of a substantial character, and tended to establish the allegations of the complaint. This proof was fully met by the denial of the defendant that he had spoken the words alleged. The issue was thus sharply defined between the parties, and the finding of the jury thereon is conclusive. The defendant insists that error was committed in the rejection of evidence upon the trial, and that the damages awarded are excessive.

The first error claimed arose in this wise: The defendant presented to the plaintiff, upon cross-examination, a check drawn by the plaintiff, and asked if he got the money on the check. Objection was interposed and the court said : “ If this is to prove that 1 in misappropriated the money, I will exclude it under the pleadings. Hr. Patterson.— I will except to it. The Court.— You say it is to prove that he misappropriated the money ? Hr. Patterson.— Yes, sir. The Court.— I will exclude it. [Defendant excepts.] ”

The witness was then asked if he ever used money of the defendant for his own purposes, and replied that he did not. Again he was asked if he ever obtained the money upon the check, and upon objection the answer was excluded. It is clear that this testimony was not admissible under the issue as joined, and that the ruling of the court was correct. It was offered for the sole purpose, as stated by counsel, of proving a justification, and for no other purpose. But it is now asserted that it was admissible upon the question of malice. It is not apparent how it bore thereon. If we could see that the d ef end-ant spoke the words, induced thereto by the fact that his money had been taken by the plaintiff, such evidence might be admissible upon the question of defendant’s malice. But here the answer made no such claim. The evidence was offered for an entirely different purpose, and defendant testified that he could not cliarg.e the plaintiff with having stolen from nim. The fact, if it existed, was unknown to defendant, and, therefore, could not have influenced him in uttering the slander. The evidence given of the utterance of the slanderous words was within the time alleged in the complaint, and was, therefore, properly received. (Distin v. Rose, 69 N. Y. 122.)

The damages are quite large, but we are unable to find legal ground for interference. Especially is this so, as the jury have, upon two trials, found for plaintiff the same amount. The charge of the court saved to the defendant any possible right to which he was entitled.

The judgment and order appealed from should he affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  