Warner v. Southall (31 A.D. 375, 1898)

Follett, J.:

This action was begun February 1, 1896, to recover damages for slanderous words alleged to have been spoken by the defendant of and concerning the plaintiff. The complaint contains two counts charging the defendant with having on three different occasions uttered words imputing the crime of arson to the plaintiff. The answer contains a general denial and also sets up facts mitigating the speaking of the words alleged to have been uttered. In the answer it is alleged that the defendant’s barns were destroyed August 13, 1895, by an incendiary fire, and that the plaintiff had a motive for burning the barns.

On the trial Charles Saxton testified that the defendant said “that if the reports in circulation were true, lie thought that Warner knew as much about how the fire occurred as anybody; * * * he said something or other about a man down where Warner kept his horse; he said somebody, I don’t know who it was now, said Warner’s horse was not in the barn at midnight when he came home that night.” James Cottrell testified that he asked defendant “how did they (your barns) get afire ? and he says, ‘ I suppose they were set afire.’ * * * I asked him if he had got suspicions about the fire, and he said Jim Warner was seen over on the south road that night ; -x- * * ]ie said he thought Jim Warner must know something about it.” On the cross-examination this witness testified, I asked him, “ How did they get afire ? and he said he thought they xvere set afire, and he said Warner was up on that road that night; that the horse wasn’t home that night.” Bradley Burnett testified, I said to defendant, a