The very full discussion which this case has received by Mr. Justice Woodward .requires nothing further to be said upon that *385branch of the case upon which we agree. I concur in the opinion, upon all the questions discussed, except that which relates to the admission in evidence of the result of the proceedings reached by the board of trustees on the trial of Yaple, the chief of police, upon the complaint of the defendant for failing to arrest the plaintiff upon the night when the disturbance occurred at Short’s saloon. It appears by the record that this question arose in this wise: Yaple was called as a witness and testified in respect of the hearing before the trustees, and that the defendant appeared at such hearing. He was asked by the counsel for plaintiff: “ Q. And what was the result of these charges % ” This was objected to upon the ground that the evidence was “ incompetent and improper, and that the record of the proceedings of the board of trustees is the best evidence.” After some colloquy between the counsel and the court the witness was again asked to state the result, the defendant renewed the objection which was overruled, the defendant excepted to the ruling, and the witness answered : “ I was vindicated. By the Court: State what the result was; were you dismissed? A. The case.was dismissed.” This ruling was error as to the form of the proof. (Denning v. Roome, 6 Wend. 651.) The record was the best evidence of the fact. It was also incompetent, for the determination had no bearing upon the questions at issue. Subsequently the defendant offered in evidence the record of the disposition of the case made by the board of trustees, and it showed that the board, after considering the matter, left it “ in the president’s hands.” At a later stage of the case the defendant moved to strike out the testimony as to what was done before the board of trustees. The court held that it could not be made the foundation of an action for malicious prosecution, but held it proper upon the question of malice, and the defendant excepted to the refusal to strike out. It is not seriously contended, nor was it upon the argument, that-tliese rulings were correct. The claim, however, is made that this error was harmless and did not tend to prejudice the defendant. Such is the view supported by Mr. Justice Woodward in his opinion. I am unable to accept it. On the contrary, I am of opinion that its tendency was distinctly harmful and directly prejudicial to the defendant. What disposition was made by the board of trustees of the charge *386made against the chief of police could not by any stretch of view make the defendant in any wise responsible, nor could he be affected thereby, nor could any results arise therefrom which could be made available in an action in favor of this plaintiff, either as bearing upon the question of malice or otherwise. But it might be very well urged upon the jury, by astute counsel, that the defendant not only made complaints and prosecuted actions against the plaintiff, but that he also made complaint and prosecuted actions against the chief of police before the board of trustees, and that the board thought so little of such charges that it dismissed the complaint. The evidence once admitted clearly authorized such a plea, and had the basis of authoritative statement for its support. Indeed, the learned counsel for the respondent, in the fervor of his oral argument before this court, stated, in substance, that there was no answer in the evidence to the plaintiff’s claim, and that the authorities of the village had so determined by the dismissal of the charges against the chief of police. Nor is it clearly apparent that the testimony of the chief of police, as to the disposition made of the charges, was incorrect. It is true that the record showed that at a given time the matter was left in the hands of the president, but there was no proof that he did not subsequently act. This matter was thus left with this incompetent testimony in the case, from which the jury could say that there was no justification for the action of the defendant, that the trustees had so said after they had considered it, and, therefore, we so say. It does not appear that they did take this view; but it clearly appears that the evidence might have created a prejudice in their minds, and that they may have taken such view or have attached more importance and weight to it than is herein expressed. As I read the authorities, such a condition constitutes clear reversible error. In Baird v. Gillett (47 N. Y. 186) it was said: “ If improper evidence be given upon the trial, although it be merely cumulative, it will be cause for a reversal. (Osgood v. Manhattan Company, 3 Cow. 612.) If the evidence could not possibly have injured the defendant, the error might be disregarded; but when illegal evidence is admitted, which bears in the least degree on the result, it is fatal.” This is probably an extreme statement of the rule, although it has been applied in many cases (Neudecker v. Kohlberg, 81 N. Y. 296; Hawley v. *387Hatter, 9 Hun, 134; Mt. Morris El. Co. v. U. S. Horse Show, 9 Misc. Rep. 180.) This rule in its practical application has been mapy times modified, and many times the strict rule enunciated in the foregoing cases has not been applied. It may be said that it is not an absolute rigid rule, but has in it some elements of elasticity. But the modification is quite within limited lines, and the erroneous evidence may at no time be disregarded, unless it can fairly be seen that it did no harm. (Foote v. Beecher, 78 N. Y. 155 ; Robinson v. Hunt, 88 Hun, 285.) Ho case, however, has gone so far as to hold that where it distinctly appears that the erroneous evidence may have prejudiced a party, it can be disregarded. Under such circumstances the ruling has been uniformly condemned. (Anderson v. Rome, W. & O. R. R. Co., 54 N. Y. 334 ; Hutchins v. Hutchins, 98 id. 56 ; People v. Corey, 148 id. 476.) It is said in the Anderson case: “ Evidence cannot be said to be entirely harmless when the party objecting to it is obliged to call a witness to explain or contradict it.” This has direct application to the present case, for if the record had been proper, Yaple’s statement was not. Yet not only was the statement incompetent, but further incompetent proof became necessary, as the defendant was obliged to introduce the record in order to break the force of the statement made by the chief of police. In any event, it is incumbent upon the person who invokes the rule of harmless error to show it harmless. (Ray v. Smith, 5 T. & C. 702.) In no wise did the charge of the court cure this error. The erroneous evidence remained in after repeated attempts had been made by the defendant to rid the case of it; and the court submitted its effect upon the question of malice “ as far as it is proper.” It was in no sense proper for the consideration of the jury. The error was committed in receiving it, in refusing to strike it out and in leaving it in the case for consideration by the iul7-
For this reason I think the. judgment should be reversed and a new trial granted, costs to abide the event.
All concurred, except Woodward, J., who read for affirmance.