¶1DISSENTING OPINION OP
¶2It is assumed that the burden of proof was upon the plaintiff to show that the words uttered by the defendant were not pertinent or material in or to the case in the course of the trial of which they were spoken. In order to sustain this burden it was incumbent on the plaintiff to show that the language complained of was not permissible comment upon any of the evidence given in the former case viewed from any possible, angle. See Youmans v. Smith, 153 N. Y. 214, 219. No such proof was offered in the case at bar. Counsel for the plaintiff took the position at the trial, as he has done in this court, that the burden was upon the defendant to show by way of defense that his remarks were pertinent and material to some issue in the former case, and he made no attempt to prove the negative. On cross-examination of the plaintiff testimony was elicited tending to show that the two hundred dollar proposition was a bona fide one made in connection with the settlement of a then pending action of ejectment in which Mit-*595suhashi was the defendant. If there was any evidence in this case that there was no testimony in the malicious prosecution case other than that given by Ferry I would concur with the majority that the language used by the defendant was not pertinent or material, but wholly unjustified. As the evidence stood when the plaintiff rested his case I think the trial judge was obliged to hold that the plaintiff had failed to make a prima facie showing that the language was not pertinent or material. He was unable to say, as this court is unable to say, that there was no evidence in the case which could have served as a basis for an accusation of blackmail. The case of Press Pub. Co. v. Gillette, 229 Fed. 108, was not one involving the privilege of a witness or counsel in a proceeding in court, and, it seems to me, throws no light on the question involved in the case at bar.