The defendant was appointed a commissioner to take evidence for ■use in an action pending in one of the courts of the State of Tennessee. The plaintiff and his wife were to be examined as witnesses. Pursuant to an agreement of the parties to this action the commission was delivered to the plaintiff, who lived in Yonkers, and later the defendant went to that city and took the depositions. After that had been done, the plaintiff swears that he took the papers, stating that he desired to consult his attorney in relation thereto, for the purpose of clearing up some matters that he was in doubt about; that the defendant consented, and that it was arranged that the papers should be delivered to the defendant later. The defendant, however, denies this, and his evidence tends to show that after.the testimony had been taken the plaintiff grabbed the papers and refused to deliver them back to the defendant notwithstanding the latter’s protest and his explanation that he was without power to consent that they should leave his possession. Thereupon defendant procured the plaintiff’s arrest, charging him with larceny of the commission. After a hearing the accused was discharged and later he brought this action for malicious prosecution, which has resulted in a verdict for the plaintiff. From the judgment and the order denying a motion for new trial the defendant appeals.
The defendant during the course of his evidence testified: “ The commission in evidence (Plaintiff’s Exhibit 0), which you hand me, I received from Mr. Charles Gerding, and at the same time I received with it certain instructions ; the paper which you hand me contains these instructions; that is the paper I received.” This letter of instructions was then offered in evidence, but the court sustained an objection thereto and defendant excepted. The letter required the commissioner to certify at the end of the depositions that they were sealed by him and put in the post office, properly addressed, without the same being out of his possession or altered after they were taken.
The judgment must be reversed for the error of the court in excluding this letter of instructions. A sharp question of fact was litigated as to whether the plaintiff forcibly took the papers or whether they passed into his possession with the defendant’s con*98sent; this had a direct and considerable bearing upon the question of probable cause. In actions for malicious prosecution it is competent upon disputed questions of fact as to malice and probable cause to show anything which would have operated on the mind of one of the parties in the direction of his contention. (English v. Major, 59 Hun, 317; Owens v. New Rochelle Coal & Lumber Co., 38 App. Div. 53; Seyne v. Blair, 62 N. Y. 19.) The defendant was entitled to present this evidence to the jury, and it cannot be said that its admission would not have affected the result.
The judgment and order appealed from should be reversed and a new trial granted.
Bartlett and Jenks, JJ., concurred; Hirsohberg, J., concurred in separate memorandum ; Woodward, J., read for ¿ffirmance.