I dissent. I do not appreciate the relevancy of the reference in the prevailing opinion to the fact that plaintiff did not prove that defendant’s complaint (before the magistrate) contained any statement of facts that was false. Plaintiff made out a prima facie case by proof of the charge made by defendant and his own discharge by the magistrate after the hearing. If the defendant thereupon sought to relieve himself from liability by showing that he had told the magistrate no more than the truth and had concealed nothing from him (see Thaule v. Krekeler, 81 N. Y. 428; Rawson v. Leggett, 184 N. Y. 504, 508, 77 N. E. 662; Leigh v. Webb, 3 Espinasse, 185, 187), such proof must have come from the defendant. There is, however, no evidence at all as to what the defendant told the magistrate.
I think the judgment should be affirmed.