235 A.D. 246 | N.Y. App. Div. | 1932
The question before us is the sufficiency of a complaint in malicious prosecution. For his cause of action plaintiff alleges that defendants maliciously and without reasonable
The pleading of a cause of action or defense must necessarily allege every fact necessary to be proved on the trial to make out a prima facie case. (3 Waite N. Y. Prac. 39.) Facts and not conclusions must be alleged.
If the pleading had omitted the allegation of the magistrate’s having held plaintiff to the grand jury, the naked allegation of want of probable cause would have been a sufficient pleading of a cause of action for malicious prosecution. The question of want of probable cause is a mixed question of law and fact, and for the purpose of pleading, it is a fact, and may be stated directly. (O’ Neill v. Johnson, 53 Minn. 439, 442.) An allegation “ without probable cause ” in hcec verba is proper. (Fowler v. Stuart, 197 App. Div. 736.)
The holding of an accused by a magistrate after an examination into the facts is prima facie evidence of probable cause for the prosecution. To meet this prima facie evidence of probable cause, when presented, it becomes incumbent upon the plaintiff to show that defendant withheld material facts on the hearing or knowingly gave or presented false testimony which might have affected the result. If he fairly and truthfully gave all the information he had, or which he might reasonably have ascertained, having a material bearing upon the issue before the magistrate, and rested, he did no more than his duty, and he is not hable in malicious prosecution, even though the magistrate reached a wrong conclusion. (Hopkinson v. Lehigh Valley R. R. Co., 249 N. Y. 296, 300; Mezzacapo v. Krivis, 230 App. Div. 465, 468.) If there were facts of this nature available to plaintiff, he should have pleaded them, if he would prove them. As it stands, the complaint is defective because the allegations of want
We are not unmindful of the case of Beall v. Dadirrian (62 Misc. 125; affd., on opinion below, 133 App. Div. 943), in which there was a contrary holding. The considerations mentioned above have made it impossible for us to follow the ruling in that case.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within twenty days after payment of costs.
All concur; Crosby, J., not sitting.
Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within twenty days upon payment of the costs of the motion and of this appeal.