29 N.Y.2d 157 | NY | 1971
Lead Opinion
Plaintiff, in Ontario, Canada, went to Lake Erie and encamped on a beach in front of defendant’s house. Defendant, claiming title to the beach, had plaintiff arrested and charged with trespass pursuant to the Petty Trespass Act. After a three-hour trial, the Ontario Magistrate’s Court declined jurisdiction. The holding was based on subdivision 3 of the Petty Trespass Act, which provides as follows: “ Nothing in this Act shall authorize any justice of the peace to hear and determine any case of trespass in which the title to land, or to any interest therein, is called in question or affected; but every such case shall be dealt with according to law in the same manner as if this Act had not been passed ” (R.S.O., 1950, ch. 275):
This action, alleging false arrest, false imprisonment, malicious prosecution, invasion of privacy and invasion of civil rights, followed. Defendant moved to dismiss upon a defense founded on documentary evidence and submitted the Canadian judgment. Special Term denied the motion in all respects. It found the documentary evidence insufficient and held that the doctrine of lex loci delictus would apply. The Appellate Division modified by striking the third cause of action on the ground that a cause of action for malicious prosecution could not be maintained in the absence of a determination on the merits.
The choice of law question must be resolved in favor of the application of the law of Ontario. The prosecution in issue was for trespassing on land in that province, and plaintiff is claiming that defendant used its legal machinery maliciously. " In such a case, it is appropriate to look to the law of the place of the tort so as to give effect to that jurisdiction’s interest in regulating conduct within its borders, and it would be almost unthinkable to seek the applicable rule in the law of some other place ’ ’ (Babcock v. Jackson, 12 N Y 2d 473, 483; see, also, Tooker v. Lopez, 24 N Y 2d 569, 572-573; Miller v. Miller, 22 N Y 2d 12, 19).
The declination of jurisdiction by the Ontario court does not provide the basis for a malicious prosecution action (Grimes v. Miller, 23 O.A.R. 764). Indeed the termination of the proceeding was so inconclusive that it shows an absence of prosecution. A recent Ontario case indicating that the prosecution therein was not nugatory because of ‘ ‘ the very wide powers of amendment possessed by a Magistrate by whom the defects in the information could have been remedied ” (Romegialli v. Marcean, [1964] 1 O.R. 407, 408) is inapposite. According to subdivision 3 of the Petty Trespass Act, this Ontario court was without jurisdiction “to hear and determine” the case (R.S.O., 1950, ch. 275). Thus, the court could not, as in Romegialli (supra), remedy the jurisdictional defect. If we read the complaint as being one in trespass — a proceeding which would lie in Ontario — the plaintiff may establish such facts under one or- several of the four other causes of action which have been sustained, i.e., false arrest, false imprisonment, invasion of privacy and violation of civil rights.
Were we to consider the issue from a New York point of view, we would nevertheless reach the same result, albeit on a slightly different theory. “ A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure ” (Burt v. Smith, 181 N. Y. 1, 5 [emphasis supplied]; see, also, Restatement, Torts, § 653). Thus,
Moreover, the recommended resolution is supported by the public policy which mandates “ that all persons should feel secure in the right to resort to courts for the apprehension and punishment of crimes ” (Rawson v. Leggett, 184 N. Y. 504, 512; Burt v. Smith, 181 N. Y. 1, 5, supra). In addition, a requirement of a termination involving the merits is consistent with our policy against “ two judgments between the same parties directly in conflict upon the same issue ” (Hauser v. Bartow, 273 N. Y. 370, 375; see, also, 52 Am. Jur. 2d, Malicious Prosecution, § 29).
Accordingly, the order of the Appellate Division should be affirmed.
Dissenting Opinion
Defendants claimed to have owned some beach on Lake Erie in the Canadian province of Ontario. In September, 1966 they caused the arrest and criminal prosecution of plaintiff, a lawyer of Buffalo, New York, who with his four-year-old daughter was using the beach. He was charged with trespass in the Ontario Magistrate’s Court, a court of inferior and limited jurisdiction. After trial, it dismissed the charge on the ground that it lacked subject-matter jurisdiction if title to land were involved. Plaintiff subsequently brought this action in the Erie County Supreme Court for five causes of action, including malicious prosecution. This last was the only
The only issue is whether the dismissal in the Canadian criminal prosecution is a termination, favorable to plaintiff, of the prior criminal prosecution against him sufficient to base his cause of action for malicious prosecution.
The well-settled and undisputed rule is that an action for malicious prosecution will not lie unless the prior prosecution has been terminated in favor of plaintiff. The reason for the rule is the avoidance of parallel litigation over the elements of probable cause or guilt, either of which suffices as a defense to the tort action. (Prosser, Torts [3d ed.], § 113, esp. pp. 856-857.)
The determination in favor of plaintiff need not have been on the merits (Munoz v. City of Neio York, 18 N Y 2d 6, 10; Levy’s Store v. Endicott-Johnson Corp., 272 N. Y. 155, 162; Keller v. Butler, 246 N. Y. 249, 254-255; Hálberstadt v. New York Life Ins. Co., 194 N. Y. 1,10-11,13-14; Restatement, Torts, §§ 659-660; Prosser, loe. eit., supra).
(To be sure, a prior dismissal obtained by plaintiff by improper methods or by his consent to a settlement of the prosecution has been held not to be a termination in his favor. Similarly, if the termination still permitted or envisaged a renewed prosecution there was no termination in plaintiff’s favor. [Prosser, loc. cit., supra-, Restatement, Torts, §§ 659, 660, supra-, cf. Halberstadt v. New York Life Ins. Co., 194 N. Y. 1, 10-11, 13-14, ' supra; Qastman v. Myer, 285 App. Div. 611, 612.] None of these situations are involved in this case.)
Assuming, dubiously, that the lex loci delicti applies, the Canadian rule is the same as in New York (Romegialli v. Marceau, [1964] 1 O.R. 407, esp. at p. 409 citing Salmond, Torts
Defendants mistakenly rely on Grimes v. Miller (23 O.A.R. 764 [1896]) in which it was held that an utterly void proceeding in an inferior court of limited jurisdiction could not base a malicious prosecution action. It viewed the nullity of the prosecution too great to support a malicious prosecution claim. As though the pain and damage were less because the cause was the worse. It is questionable that the Grimes case is still law, relying as it did on orthodox common-law pleading and a doctrine rarely, if ever, followed, that if the criminal prosecution is void then the injured plaintiff is limited to an action for trespass rather than entitled to pursue action on the case for malicious prosecution (compare 13 Canadian Enc. Dig. [Ont.] [2d ed.], Malicious Prosecution, § 1, p. 106, cited by defendants, with 26 Canadian Abridgment, 132-136, citing, in addition, cases contrary to the Grimes holding, including several from Ontario; cf. Rex v. Stewart, 6 Man. R. 257, 262-263 [1889]; Flora v. Shandro, 8 W.L.R. 426 [1908], rejecting the reasoning in the Grimes case, supra, and in Hunt v. M’Arthur, 24 U.C.Q.B. 254 [1865], dubiously a precursor to the Grimes case; see, also, 52 Am. Jur., Trespass on the Case, §§ 15, 16).
It is notable, however, that the opinions in the Grimes case (supra) indicated that there might still be a remedy in trespass. That court was dominated by its concern with a matter of procedure, namely, the proper common-law form of action. Three of the four Judges held that trespass was the proper remedy. Of course, if that be true then under liberal CPLR pleading
If the New York law and the Ontario law are the same, the case presents no problem of choice of law. Assuming, however, that the Grimes case {supra) somehow expresses the Ontario substantive law, and not merely a procedural peccadillo, then it is not at all clear that the lex loci applies (see Restatement, 2d, Conflict of Laws, § 155, and compare it with Restatement, 2d, Conflict of Laws, T. D. No. 8, April 15, 1963, § 379k; Ehrenzweig, Conflict of Laws, p. 558; Goodrich & Scoles, Conflict of Laws [4th ed.], § 93). The complaint alleges that plaintiff and defendants are residents of New York State, although defendants in their brief, without record support, say that at the time of the transaction they were residents of Canada. This is difficult to understand since plaintiff is and has been a New York lawyer. It is hard to see any “governmental” or other interests of Ontario in this lawsuit between New York residents arising from but no longer involving Canadian beach sand on Lake Erie (see Toolcer v. Lopez, 24 N Y 2d 569, 576-579; Miller v. Miller, 22 N Y 2d 12, 18-20).
Accordingly, I dissent and vote to reverse the order of the Appellate Division and to reinstate the third cause of action for malicious prosecution.
Chief Judge Fuld and Judges Scileppi, Bergan and Gibson concur with Judge Burke ; Judge Breitel dissents and votes to reverse in a separate opinion in which Judge Jasen concurs.
Order affirmed, without costs.
“ If the prosecution has actually determined in any manner in favour of the plaintiff it matters nothing in what way this has taken place. There need not have been any acquittal on the merits. What the plaintiff requires for his action is not a judicial determination of his innocence but merely the absence of any judicial determination of his guilt. Thus it is enough if the prosecution has been discontinued, or if the accused has been acquitted by reason of some formal defect in the indictment, or if a conviction has been quashed, even if for some technical defect in the proceedings.” (Salmond, Torts, 13th ed., p. 726.)
