43 N.Y.S. 907 | N.Y. App. Div. | 1897
It is not certain whether this action is brought to recover damages for false imprisonment of the plaintiff or for malicious prosecution, but in neither aspect of the case do we think that the complaint can . be sustained. .
If it was intended to sue for the false imprisonment the complaint is manifestly defective, because there is no allegation in it that the imprisonment of the plaintiff, which it is said was procured by the . defendant, was illegal, or was procured without a warrant. One of these things it is necessary to allege. (Addison on Torts [Wood’s ed.], *147)
It is claimed that the act of the defendant was a trespass, and that
Neither can the complaint be sustained as an action for malicious prosecution. To sustain such an action, it is necessary that the plaintiff should allege and prove that there was no probable cause for the prosecution, and that it was instituted through malice. (Thaule v. Krekeler, 81 N. Y. 428.) It is stated in the complaint that the defendant maliciously.charged the plaintiff with the crime, but there is nothing from which it can be inferred that that charge was made without any probable cause. Whatever weight may be given upon the trial to the fact that the charge was false, and that the plaintiff was acquitted, the 2>laintiffis not relieved, because of the allegation of those facts in the complaint, from the necessity of alleging that there was no probable cause for the prosecution against him.
For these reasons the judgment overruling the demurrer must be reversed, and judgment given for the defendant upon the demurrer, with costs, with leave to the 2)laintiff. to amend his complaint in twenty days on payment of the costs in this court and of the demurrer in the court below.
Yan Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.