181 A.D. 272 | N.Y. App. Div. | 1917
Lead Opinion
There was a verdict for plaintiff in an action for a malicious prosecution, based upon the arrest of plaintiff at Philadelphia on a warrant sworn out by- defendant, charging plaintiff with the crime of larceny, in having stolen a case of surgical instruments of the value of $200, the property of the Electro Surgical Instrument Company of Rochester. The plaintiff had been for some time prior to his arrest a salesman in the employ of the company, using samples furnished and owned by the company. The defendant was the general manager of the company and the arrest was occasioned by the failure of the plaintiff to return the samples after demand.
On the issue of probable cause, the plaintiff’s case is far from strong. We shall not review the evidence on this head because the judgment must be reversed upon another ground.
The most serious point in the case is .whether the plaintiff established by a preponderance of the evidence that the criminal proceedings terminated in his favor within the rule applicable to this class of actions. (Halberstadt v. New York Life Ins. Co., 194 N. Y. 1, 10.) The determination of this depends upon whether the prosecution was withdrawn solely because, after plaintiff’s arrest, the defendant learned that the instruments had been returned by express a day or two prior to the arrest or whether the plaintiff effected a compromise and settlement that led to the withdrawal of the charge.
On plaintiff’s side we have only his own testimony, which is that immediately after the arrest he communicated with Dr. Fithian, an old friend and college classmate, and told him that he had been arrested for embezzlement of the instruments and asked him to come over from Camden; that Dr. Fithian came to his cell and said: ' “ Just keep cool, we have the thing settled, we have got them all right; ” that Dr. Fithian then said: “ Have you a watch?” and that plaintiff “ without thinking ” handed it to him and the next he knew he was called into the courtroom and the case was withdrawn. From this it would of course appear that whatever Dr. Fithian did in the way of settling the case, plaintiff knew nothing about it and had nothing to do with it, and
The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.
Scott, Smith and Page, JJ., concurred.
Concurrence Opinion
I concur. I am also of the opinion that plaintiff not only failed to prove want of probable cause, and that the verdict of the jury to the contrary was against the weight of the evidence, but that probable cause for the arrest was clearly established.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.