The action was for malicious prosecution. The defendant was a witness in his own behalf. In the course of his testimony he swore that in the month of January,. 1897, and before'he had made the complaint upon which Hart was arrested, and which lay at the basis of the action, he Mad a talk with one Elkan, and he was asked what Elkan said to him about Hart. The question "was objected to as *412incompetent, immaterial, irrelevant and hearsay. The objection was overruled and the plaintiff’s counsel excepted to the ruling. In reply to the question and to. several others of the same nature the defendant testified substantially that Ellran told.him that Hart was one of the worst men he knew, that he had been in prison in Boston, was one of the biggest crooks in New York city, and that he knew Hart was going to “ do ” him, and that Hart had been iil trouble in St. Louis and Chicago and had to clear out and leave both those places. The plaintiff urges that the reception of this evidence was; error for which the judgment and order should be reversed.
In our judgment the exception is well taken, and the admission of this evidence was fatal to the judgment. It was admitted generally in the action, and so the jury were entitled to consider it as bearing not only upon the question of damages but also on the question of probable cause, . and undoubtedly they did consider it upon that point.
That the evidence is hearsay is quite apparent, but it is claimed to be material, because it is urged that when one is attempting to show that he had probable cause for making a criminal charge against another, he has the right to take into consideration the character of that person. The defendant insists that if the person against whom the charge is made is notoriously a man of bad character and has been convicted of other crimes, or is one whose reputation is not good, a reasonable man may believe that such a person has committed a. particular offense upon less proof of its commission than if he were a man who bore a good character in the community. It is quite possible that may be true; and, in view of that possibility, it has been held in other States that in actions of this nature proof of the general reputation of the plaintiff would be competent as bearing upon the question of probable cause, as well as in mitigation of. damages. (Bacon v. Towne, 4 Cush. 217; Barron v. Mason, 31 Vt. 189 ; 2 Greenl. Ev. § 454 et seq.)
■ Whether we concur in the result of these cases it is not necessary to consider, because the testimony admitted over the plaintiff’s exception cannot be said in any way to' afford proof of the plaintiff’s general reputation, which is all that is said to be admissible in the cases above cited. Nor was it proof of any fact; -and, therefore,, it is not within the reasoning which has led some courts to suggest, *413but not to decide, that evidence that the plaintiff was guilty of a crime of the same nature as the one for which the defendant caused him to be arrested, is competent as bearing upon the question of probable cause. (Barron v. Mason, 31 Vt. 189.) All that .the tesr timony amounted to was a statement of a person not under oath of his opinion that Hart was a bad man and a crook, and a story that he had been in prison in Boston and had been in trouble in St; Louis and Chicago and had to leave those places. It was hearsay as to specific facts, which may or may not have been true, and which, if true, did not necessarily show that Hart. had been guilty of any crime. So far as it was an opinion, it was a statement of one person of what he thought of Hart based probably upon his own experience or probably upon his dislike. It did not purport to be a statement of the reputation which Hart bore in the community. Whenever the reputation of one is in question, or whenever that reputation is material in enabling another to form an opinion, it must be shown not by specific acts nor by an opinion based only upon specific acts, but upon the general reputation which the man bears in the community, and in no other way can it be proved. (People v. Greenwall, 108 N. Y. 296, 301, 302.)
There was nothing in the evidence which would justify the defendant in coming to the conclusion that Hart was guilty of the crime which he charged against him. The evidence had not the slightest tendency to afford a reasonable man ground to believe that Hart was guilty of any crime, and, for that reason, it was utterly incompetent and the objection was well taken, and the judgment must be reversed. This conclusion renders it unnecessary to consider any of the.other questions presented, which, in every probability, will not arise upon another trial.
The judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and McLaughlin, J., concurred; Ingraham, J., dissented.