192 A.D. 863 | N.Y. App. Div. | 1920
In the month of January, 1919, the defendant procured the arrest of the plaintiff upon the charge of violating section 1423 of the Penal Law of this State. The defendant is a domestic corporation, a telephone company, and the violation of the law complained of consisted in the alleged willfully and maliciously displacing, removing and destroying its telephone line, the wires thereon and the poles and appurtenances thereto. The acts complained of were in the information laid for the warrant in the language of the section above referred to, and said section is also referred to in the complaint in this action. Plaintiff was held by a justice of the peace for the grand jury. The grand jury failed to indict the plaintiff. This action was brought for malicious prosecution. The evidence shows that plaintiff is engaged in the trucking business, moving buildings, etc. On the 13th of January, 1919, he started to move a building along and over the highway for some distance to the village of Potsdam, N. Y. The building and skids upon which and with which it was being moved reached a height of about eighteen and one-half
It was error to dismiss the plaintiff’s complaint. The judgment should be reversed and a new trial granted, with costs.
All concur, except H. T. Kellogg, J., dissenting.
Judgment reversed and new trial granted, with costs to appellant to abide the event.