39 A.D.2d 705 | N.Y. App. Div. | 1972
In an action to recover damages for malicious prosecution, defendants appeal from an order of the Supreme Court, Kings County, dated December 7, 1971, which denied their motion for summary judgment. Order reversed, on the law, with $10 costs and disbursements, and motion granted. Plaintiff was indicted for the crimes of forgery and grand larceny in connection with his alleged unlawful receipt of the proceeds of a cheek issued by his employer. At the close of his trial, the court directed a verdict of acquittal. The uncontroverted proof in the record shows that the original complaint to the police regarding the incident was made by plaintiff’s employer, that defendant Kolton was sought out by the prosecutor in the course of the investigation and that the accusatory information was signed by a detective. Kolton merely appeared as a witness before the Grand Jury and at the trial. This proof, in our opinion, establishes that Kolton did not initiate or procure the initiation of the criminal proceedings against plaintiff and consequently no action lies against him for malicious prosecution (see 1 Harper and James, Law of Torts, § 4.1; Al Raschid v. News Syndicate Co., 265 N. Y. 1; Macauley v. Theodore B. Starr, Inc., 194 App. Div. 643). As for the corporate defendant, plaintiff alleges it participated in the criminal prosecution by reason of the testimony of its employee, Kolton. This allegation is insufficient to hold the corporation liable for malicious prosecution (Macauley v. Theodore B. Starr, Inc., supra, p. 651). Finally, there is a total absence of proof showing the presence of the essential element in an action of this kind, namely, that the prosecution against plaintiff was prompted of malice. At most, the facts established a ease of mistaken identity, but this is hardly sufficient. Munder, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.
