105 N.Y.S. 674 | N.Y. App. Div. | 1907
The defendant has the judgment upon the verdict of the jury in this action for malicious prosecution. ■
At trial the defendant called a deputy assistant district attorney to prove his advice as advice of counsel. The plaintiff objected" on the ground that the alleged advice was given after the fact, that it was not a-defense and not a procuring cause of the arrest, inasmuch as the arrest was made on January twentieth and the alleged advice was given a week thereafter. The court, remarked it “ was a reason why they went on with it.” The' counsel for the plaintiff retorted that the circumstance of such advice at such a time, i. e.,' one week after the arrest, could not tend to defeat the cause of action; at most it would only mitigate the damages, and that there
Advice of counsel cannot make out a complete defense. (Hazzard v. Flury, 120 N. Y. 223; Parr v. Loder, 97 App. Div. 218, 221; appeal dismissed, 180 N. Y. 531.) It may be material as to malice. It may go to the mitigation of punitive damages. It seems to me that the advice was given at a time too late “to repel the imputation of malice,” in the words of Stoby, J., supra. So far as mitigation is concerned, suffice it to say that there was no plea which made this evidence admissible to that end. (See Bradner v. Faullmer, 93 N. Y. 515; Billings v. Albright, 66 App. Div. 239, 251.) It seems needless to discuss the proposition whether the
It is quite eleár that the learned court charged the jury that it might consider the advice of counsel upon the question of probable cause. At the close the.learned counsel for the plaintiff took exception “ to the charge that the advice of counsel may be considered by the jury as going to show probable cause.” The court: “ They may take that as an element — ” Counsel: “ I except to that —1” The court: “An element in the whole case.” Counsel: “I ask your Honor to charge that the advice of counsel is only to be considered on the question of malice.” The court: “Ho.; I decline to charge that. It is. a part of the case.” Counsel: “ I ask your Honor to charge that the advice of counsel given after the arrest is not to be considered.” The court: “ It may be considered as a reason for continuing the prosecution by the District Attorney — that is after the arrest as having a bearing only upon the fact that they continued the prosecution before the magistrate; it was received simply for that purpose only.” Counsel: “ I except to the refusal to charge as requested and to the modification now made.” I think that the learned court fell into error. (Hazzard v. Flury, supra; Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321, 326.)
The judgment and order must be reversed and a new trial is granted, costs to abide the event.
Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.