Since the evidence upon the material issues of this ease cannot, as a matter of law, be regarded as preponderating on either side, the determination of the jury that the defendant is liable to the plaintiff for damages for slander cannot, on that ground, be disturbed. The learned trial judge, however, charged the jury that the allegation in the defendant’s answer that the charge is true may b'e considered by the jury as an aggravation of damages. This charge should have been qualified by a direction that the reiteration of the slander in the answer shall be considered in aggravation of damages, provided that “ the circumstances evince that the reiteration of the slander in the answer was done maliciously and without probable cause for believing it true.” Distin v. Rose, 69 N. Y. 122. Since the slander was uttered only to the plaintiff’s employer, who continued to employ the plaintiff as a furniture salesman after the slander was uttered, the verdict of $1,000 which the jury awarded to the plaintiff seems to have been influenced, as to its amount, by the error in the charge of the learned trial judge.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Gildebsleeve, J., concurs.