100 N.Y.S. 893 | N.Y. App. Div. | 1906
The action is for malicious prosecution. The.facts and circumstances leading to plaintiff’s arrest are as follows:
On the 28tli of January, 1902, at about one o’clock p. m., a man, whose identity is still unknown, tendered to the drygoods firm of II. C. F. Koch & Co., in payment for a lady’s coat which he bargained for a check of James Everard’s Breweries, drawn by its president, payable to and purporting to be indorsed by J. Waitzfelder. The defend
The preliminary hearing was had, and in behalf of the People the presentation and cashing of the. check and delivery of the merchandise obtained thereon and the forgery of the indorsement-were proved, and the plaintiff was identified as the man by the defendant and the saleswoman and cashier and another saleswoman who was present, and tried on the coat by request.
In defense the plaintiff proved by himself and other witnesses •that he was in attendance at the funeral of a relative in Hew Jersey on the day and hour in question, and he was thereupon discharged.
In addition, the defendant testified that ■ he had no personal acquaintance with plaintiff, and had no motive in charging him with the crime other than that he deemed it 1ns duty as a citizen and as a merchant to prosecute a man who had passed a forged check and obtained money and goods thereon; and that he believed when he entered complaint, not only from his own identification but from that of his employees, that-the plaintiff was in fact the man who had committed the crime, and that he ‘knew nothing of the piar»-’ tiff’s defense of alibi until it was developed on the hearing before the magistrate.
All of the above facts were undisputed, except that the’ plaintiff denied that on-his arrest the police officer asked him where he was on the twenty-eighth of January, and that he replied that he did not know. This occurred, however, after the complaint had been made and the warrant for plaintiff’s arrest issued.
The investigation which defendant instituted was cautious and painstaking. That a crime had been committed by some one was beyond controversy. The identification of plaintiff as the man who had committed it was far from reckless. He was not pointed out as the man who was suspected, but the witnesses were compelled" to pick him out from many other letter carriers in similar uniforms. Even then, to make assurance doubly - sure, the. witnesses .asked opportunity to see the plaintiff in citizen’s clothes; and dressed in • that manner, not only the defendant but his employees positively identified him. To substantiate this identification the defendant was informed by the sergeant of police that the plaintiff' was off duty on the day the crime was committed, and tiiat his superiors did not know why, or where he was. ^
These facts constituted reasonable grounds for the prosecution of plaintiff, and furnished probable cause for his arrest. “ Probable cause does not necessarily" depend upon the actual guilt of the person prosecuted, but may rest upon the prosecutor’s belief in his guilt when based on reasonable grounds. One may act upon what ;,appears to be true, even if it turns out to be false, provided he believes it to be true and the appearances are sufficient to justify the belief as reasonable.” (Burt v. Smith, 181 N. Y. 1, 6.) When the facts are undisputed, the question of the existence of probable cause is one of law for the court rather than of fact for the jury. (Rawson v. Leggett, 184 N. Y. 504.)
It is urged that the fact that the post office inspector reported to the defendant tiiat he could not connect the cashing of the check with the mail carrier suspected, or with any man connected with the post office department, showed the subsequent prosecution . malicious and without probable cause. This same inspector, inferentially, advised consulting the police force. He communicated to the defendant no new facts which would tend to put him upon further inquiry or to shake his belief in his own and. his employees’ identification of the plaintiff. On the contrary, that identification • was strengthened by the report of the sergeant of police as to
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, Ingraham, Laughlin and Scott, JJ., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.