#### LALLY v. EMERY.

(Supreme Court, General Term, Fourth Department.

July, 1894.)

1. Libel and Slandeb—-Evidence—Malice.

Where the slander alleged was that defendant, a soldier in the United States army, said to a member of his company that the officer commanding the company had said to him, “The last dealings I had with that man [plaintiff] I was on a court-martial that tried him for rape, or attempt to commit rape,” it was proper to allow defendant, for the purpose of disproving malice, to testify that he believed the words spoken by the officer in regal'd to plaintiff.

2. Witness—Examination.

Where defendant, examined as a witness in his own behalf, refuses to answer certain questions, on the ground that they involve privileged communications, he may, on his redirect examination, testify as to such transactions, in order to explain circumstances that had been disclosed on the cross-examination.

Appeal from circuit court, Jefferson county.

Action by Peter J. Daily against Jonas A. Emery for slander. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial made on the minutes, plaintiff appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MEBWIN, JJ.

Hannibal Smith, for appellant.

Watson M. Rogers, for respondent.

HARDIN, P. J.

Upon a former appeal in this case (54 Hun, 517, 8 N. Y. Supp. 135), it was assumed by this court that a charge to the *889effect that it was for the jury to determine whether the words used amounted to a charge of crime was proper; and, also, that the words in the charge which left it to the jury to say “whether or not the defendant in good faith, in the line of his duty, without malice, stated what he did believing it to be true,” were proper; and the judgment there under review was reversed on account of rulings rejecting some evidence offered. The charge to which reference has been made, in respect to the matters quoted therefrom, was approved by this court when the case was here upon a second appeal (59 Hun, 237, 12 N. Y. Supp. 785), and on that occasion it was held, in effect, that if “the words spoken were privileged, still the privilege, if any, was a qualified one; and if they were not spoken in good faith, or were uttered with actual malice, it would constitute no defense to the action,” and a nonsuit was set aside on the ground “that the case should have been submitted to the jury, and that the court erred in dismissing the complaint.” Upon the trial now brought here for review, the trial judge properly submitted the questions to the jury: (1) As to “whether the language used imputed or charged the defendant with the commission of a crime;” and in doing so he quoted from the charge delivered by the learned justice who presided at the first trial. (2) In the charge before us, the court also submitted to the jury “whether the occasions and the subject of these conversations were privileged occasions and privileged subjects.” He also said:

> “You will determine whether this subject was a privileged subject for him to talk to the sergeant about. And the occasion— I do not understand there is any dispute about that; it was at his daily visit to the company, and the occasion does not seem to be claimed public. I do not understand it to be claimed on either side that anybody else was present, except these two men, —the commanding officer of the company, who happened to be a lieutenant, instead of the captain, and the first sergeant.”

(3) The trial judge then submitted to the jury the further question, using the following language:

> “If you find the subject was a privileged subject, and the occasion was a privileged occasion, then the commanding officer was protected in making the statements he did, provided he had probable cause, and acted without malice.”

He then instructed the jury very carefully in respect to probable cause, and as to malice. Upon the evidence before the court, we are of the opinion that the charge was correct The attention of the jury was carefully directed to the principles of law which were applicable to the case as presented by the evidence. Hemmens v. Nelson (Sup.) 13 N. Y. Supp. 175, and cases there cited; and the same case, affirmed 138 N. Y. 517, 34 N. E. 342.

2. When the defendant was upon the stand as a witness, he testified that on an occasion of a game of baseball at Ft. Bennet, in July, 1887, a week or so before he started east, he had a conversation with Lieutenant Lloyd, who then belonged to the Fifteenth Infantry and had served with his regiment in New Mexico. He was then asked to state what took place between him and Lieutenant Lloyd in reference to Lally. Objection was made and overruled, and an exception taken, and the witness proceeded to *890state what Lieutenant Lloyd informed him in respect to Lally; and,, in the course of the evidence so given, the witness stated that Lieutenant Lloyd remarked, viz.: “The last dealings I had with that man, I was on a court martial that tried him for rape, or attempt to commit rape.” The witness was then asked, “Did you believe the words spoken by Lloyd in regard to Lally?” This was objected to as incompetent, and the objection overruled, and the witness answered, “I did.” We think no error was committed in receiving the evidence objected to. The answer of the defendant alleged the communication by Lloyd, to the defendant, of the words-in substance as stated, and that the communication of them was-before the occasion of the mentioning in the complaint of the uttering of the words named therein; and the answer also contained an averment that, “when said words were so spoken by said Lloyd,, this defendant believed them to be true.” Code Civ. Proc. § 536.

In Bush v. Prosser, 11 N. Y. 347, it was held that facts and circumstances which disprove malice may be received in evidence. That case was followed in Gorton v. Keeler, 51 Barb. 481, and in the course of the opinion there it was said: “Mitigating circumstances-are those which tend to disprove malice.” In Willover v. Hill, 72 N. Y. 36, it was held that mitigating circumstances must be set up-in the answer, and that reports or information relied upon must be such as had come to the knowledge of the defendant before uttering-the words charged in the complaint. In speaking of the interview had with the defendant, relied upon in mitigation, it was said: “To render it proper for any purpose, it should have been confined" to a period preceding the slander.” In Hatfield v. Lasher, 81 N. Y. 246, in the course of the opinion, it is said that certain evidence-that was rejected was properly rejected, because “it did not tend to-prove that the charge was true, nor did it tend to prove that defendant had information, or had heard reports, which should have, per se, led him to believe that it was true.” Not so in the case-before us. The very object of the evidence in respect to the interview with Lieutenant Lloyd was to show that the defendant received the information prior to the uttering of the words, and to-lay the foundation for the statement made by him, in respect thereto, that when he uttered the words proved against him in this case he believed them to be true. See, also, the opinion of the court delivered in this case on the first appeal, 54 Hun, 517, 8 N. Y. Supp. 135.

3. Appellant’s learned counsel complains of certain rulings made-by the court, during the re-examination of the defendant as a witness, in respect to conversations held with his wife in regard to-Mary Stuart. Upon looking at the cross-examination made by the-appellant’s counsel, it appears that he asked defendant as to conversations he had held with his wife with regard to Mary Stuart,, and in response to those questions the witness stated that the subject of the relations “between Mary Stuart and Lally was the subject of conversation between” the witness and his wife. It seems that in the redirect examination the court allowed the conversations that had been inquired into by the appellant’s counsel to be-*891stated, with, a view of explaining the circumstances that had been disclosed in the course of the cross-examination. In doing so we think the court did not violate the rules of evidence. In Blumenthal v. Bloomingdale, 100 N. Y. 561, 3 N. E. 292, the defendant, in the course of the cross-examination, drew out a negotiation, and in the redirect examination the witness was allowed to give the whole of the negotiation; and, in the course of the opinion upon that ruling, Finch, J., says: “If they were entitled to part of it, plaintiff might prove the whole, to prevent or rebut any adverse or damaging inferences.” A somewhat similar ruling was under review in Simmons v. Havens, 101 N. Y. 433, 5 N. E. 73, and Rapallo, J., says that the explanation was properly allowed after the developments made in the cross-examination.

Our attention is called to People v. Cox, 21 Hun, 47, affirmed 83 N. Y. 610, by the counsel for the appellant. In the course of the opinion, delivered by Smith, J., in that case, he said:

> “Undoubtedly, when a statement forming part of a conversation is given in evidence, whatever was said by the same person, in the same conversation, that would in any way qualify or explain that statement, is also admissible.”

He then proceeded to show that the rule was inapplicable to the case before the court, as no statement had been made which required any qualification or explanation. Hot so in the case before us. The cross-examination had been by the counsel for the plaintiff, in respect to a conversation held by the witness as to Mary Stuart, and as to whether he had not made a declaration in connection with her that he would see that Lally “was court-martialed;” also in respect to “alleged relations between Mary Stuart and Lally.” If the declarations called out in the course of the cross-examination had been unexplained, they might have warranted inferences against the witness which his explanation in the course of his re-examination tended to relieve him from. Humerous other exceptions are found in the record, which have received attention, but they present no error that requires us to disturb the verdict, or to require comments upon. Some criticism and complaint of the charge of the learned trial judge is indulged in by the plaintiff’s learned counsel. The charge seems to us to have been clear, explicit, and ample. We cannot review the tone of voice or the “emphasis” used by the learned judge in delivering the same1 to the jury; nor, from a perusal of the charge, are we able to say that he “minimized” the plaintiff’s case, or “supplied with refined palliatives and excuses” the defendant’s case as presented by the evidence. Judgment and order affirmed, with costs. All concur.