129 N.Y.S. 966 | N.Y. App. Div. | 1911
The action is for malicious prosecution. From a judgment entered upon a verdict in favor of the defendants and from an order denying a motion for a new trial, this appeal is taken.
There was a sharp conflict in the evidence. It is impossible to conclude that such conflict arose from honest mistake. Some of the witnesses were clearly guilty of perjury. We are not prepared to say that the jury were not justified in accepting as credible the testimony offered on behalf of the defendants.
From the evidence in the case the jury were justified in finding the following facts: Defendants were manufacturers of clothing, furnishing the material cut and ready to he put together. Such material was delivered to a firm of contractors known as Cohen & Cohen, to complete. These manufacturers caused a part of the buttonholes to be made by their own employees, and delivered a part, for a similar purpose, to Samuel Schwartz, known. as a buttonhole maker. One evening in the latter part of October, 1906, Abraham Cohén, one of the firm of contractors, absconded. His partner, also named '
The fact that Schwartz and his carrier had forcibly taken away these coats on the morning in, question was communicated to one of the defendants. Negotiations then began for a return of twenty-four of the coats which belonged to defendants. A short time after, variously stated as from three days to a week, another contractor, whose coats had also been taken, went to Schwartz and asked for the coats, and was then informed by bim that he did not have the coats,'that they were across the way in the tailor shop. Danzer, the plaintiff, conducted a tailor shop in the same building with Schwartz and on the opposite side of the hall. Demand was then made for the return of the coats taken away from the person in' charge of the tailor shop, who refused to deliver them unless three or four dollars was paid for each coat.- Schwartz claimed that the firm of Oohen <& Cohen was indebted to him for work previously done by him in about the sum of two hundred dol
On December fifth a summons was issued by a Magistrate’s Court, at defendants’ request, directed to Schwartz. He appeared, and the suggestion was then made that a suit in replevin should he instituted by defendants to recover the coats. There was testimony that such proceedings were instituted, but the marshal to whom the writ was delivered was unable to find the coats. Subsequently, and on the 9th of January, 1907, another summons was issued, addressed to Schwartz, in connection with the same matter, and, although the parties appeared, nothing was accomplished in securing a settlement of their conflicting claims.
In the latter part of November Schwartz, acting under the advice of an attorney, prepared a notice, asserting that he had a lien on the coats in his possession for the sum of $201.52, and requiring the owners of such property to pay the same on or before the 10th of December, 1906. The notice also contained a statement that in default of such payment the property would be sold at public sale at Schwartz’s place of business on the (blank) day of December, 1906. This notice was addressed to some of the other owners of the property, but was not addressed to the defendants. It appears, however, that a copy of this notice, served upon one of the other owners, was brought to defendants’ attention. Subsequently, and on the 17th and 24th days of December, 1906, a copy of the notice, with a date of sale inserted (December twenty-sixth), was published in the New York Times. There was testimony that defendants sent two of their employees on the twenty-sixth of December to Schwartz’s place of business, and were then informed that the sale had been postponed for a week. On the adjourned day, one of them attended again, and, although he remained about the premises for some time, he testified that no sale took place, nor could he obtain any definite information respecting it. Plaintiff, on the contrary, testified that the goods were offered for sale at public auction in Schwartz’s shop on the adjourned day by one of the
“A person who, with the intent to deprive or defraud the true owner, of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any' other person, '* ⅜ ⅜ 1. Takes from the possession of the true owner, or of any other person; ⅜ ⅞ ⅜ or secretes, withholds, or appropriates. to his own use, or that of any person other than the true owner, any ⅜ ⅜ :⅛ personal property ⅜ ⅜ ⅜ steals such property, and is guilty of larceny.” ■ (Penal Code, § 528.)
The learned trial judge charged the jury, in substance, that, if Schwartz took the material and made the' buttonholes and then, delivered the material back to the original contractors and one of the contractors absconded after the coats had been out of the possession of Schwartz, after he had relinquished any lien that he had upon them, and if íBSchwártz then went to the shop of the contractor, retook possession of the coats and brought,them back to his own place, insisting upon a lien which he had lost by the delivery of possession, and made á claim in a larger amount than he was entitled to even if he had a lien; if he acted evasively and suspiciously and sold the goods át a sham auction, conducted by his own counsel, and gave no information to the defendants as to the time or place of sale upon inquiry, served no notice upon them, gave a notice
This charge, we think, accurately stated the question of fact to he submitted to the jury, and correctly instructed them as to the law. The crucial question in the case was emphasized by a further charge made at the request of plaintiff’s attorney, to the effect that “if they find that Schwartz had not delivered the coats in question to Cohen & Cohen on the morning that Cohen absconded, and that he had a lien and in good faith asserted that lien, and that the auction sale took place in an endeavor to foreclose his hen, and that Danzer purchased these coats at that auction sale, and these facts were known to the defendants in this action, then there was no probable cause for the arrest of the plaintiff.” The court charged the request, with the addition: “And Schwartz and Danzer acted in good faith.” The original charge and the request, as modified, were satisfactory to plaintiff’s counsel, for no exception was taken thereto. Plaintiff’s request was doubtless made in consideration of the provision of the statute that “Upon an indictment for larceny it is a sufficient defense that the property was appropriated openly and avowedly,' under a claim of title preferred in good faith, even though such claim is untenable.” (Penal Code, § 548.) ¡ -
The question of good faith was fairly submitted to the jury, and'their verdict establishes the absence thereof. If, as the
The statute declares that “A person who makes, alters, repairs, or in any way enhances the value of an article of personal property, at the request or with the consent of the owner, has a lien on such article, while lawfully in possession thereof, for his reasonable charges for the work done and materials' furnished, and may retain possession thereof until such charges are paid.” (Lien Law [Gen. Laws, chap. 49; Laws of 1897, chap. 418], § 70.) But an artisan’s lien.under. the statute must also be a lawful-possession, and the burden of proof of showing-such possession is on the lienor. (O’Clair v. Hale, 35 App. Div. 77; Wiles Laundering Co. v. Hahlo, 105 N. Y. 234; Smith v. O’Brien, 46 Misc. Rep. 325.)
It is not necessary to consider the regularity of the proceedings in connection with the alleged sale, for the jury have found, and the evidence warrants the finding, that such sale was not a bona fide one.- Plaintiff contends, however, that, as against him, evidence of prior conduct on the part of Schwartz and his employees, and of prior proceedings tending to show a purpose upon his part to secrete the property and defeat the return of the coats through civil process, was improper. We think .the point is not well taken. The jury were clearly instructed that they must find a collusive arrangement between
The only remaining point which we deem necessary to consider is presented by plaintiff’s exception to a request to charge. The court was asked to charge:. “ That the jury have a right to find from the fact that the criminal prosecution against the plaintiff, instituted by the defendants, resulted in favor of the plaintiff, that there was a want of probable cause for the institution of the criminal prosecution against the plaintiff.”
The request was properly refused. Where the proceedings before the magistrate resulted in holding the plaintiff, this fact, unqualified as to its effect by other evidence, and unexplained, might establish a prima facie case of the existence of probable cause. (Burt v. Smith, 181 N. Y. 7; Schultz v. Greenwood Cemetery, 190 id. 276.) But it by no means follows that the converse would be the case.' In any event this request goes so far as to ask that the jury be instructed that they might find want of probable cause from that fact alone, without regard to the other evidence in the case. ■ It has been held that, notwithstanding the criminal proceedings were dismissed, if evidence was introduced on the part of the defendant showing that the crime charged was actually committed, such evidence, if credible, is a complete defense to the action. (Barber v. Gould, 20 Hun, 446; Turner v. Dinnegar, Id. 465;
The judgment and order should be affirmed, with costs.
Judgment and order affirmed, with costs.