36 Barb. 26 | N.Y. Sup. Ct. | 1861
By the Court,
The words for the speaking of which this action was brought, as stated in the complaint, are as follows: “She (referring to the plaintiff’s wife) has stolen tea, sugar and calico, and carried it away from there, home.” These words, as understood in their ordinary sense, impute a larceny, and are actionable per se. The words proven on the trial, by one witness, were, “she took tea and calico from her, and she found them in her things;” and by another witness, they were, “she had taken tea and calico, and I think she said sugar.” hieither of these sets of words are actionable per se. To steal tea, sugar or calico, is to commit a larceny. • To take either of those articles, is not necessarily to commit a crime. It may mean nothing more than a trespass, and the taking might be entirely innocent. The action therefore clearly was not sustained by the proof of those words. It could only be sustained, upon these words, by proving that they were uttered with intent to impute a felonious taking of the goods, and were so understood by the persons to whom they were addressed, or in whose presence and hearing they were uttered. Before the code, the plaintiff must have been nonsuited for the failure to prove any of the actionable words stated in the complaint. But a more liberal practice now prevails. The judge disregarded the variance in the words, according to
Smith, Johnson and Knox, Justices.]
Hew trial denied.