70 N.Y.S. 212 | N.Y. App. Div. | 1901
The judgment and order appealed from should he affirmed, with costs.
The action was brought to recover damages for alleged malicious prosecution. The appellant defendant instituted the prosecution of the plaintiff complained' of by making affidavit before the other defendant, Maine, a justice of the peace of the town of Manlius, Onondaga county, and procuring a warrant to be issued by such justice for the crime of obtaining food and other hotel accommodations at appellant’s hotel to the amount of fourteen dollars and thirty-one cents, and thereafter absconding and surreptitiously removing his baggage therefrom with intent to cheat and defraud appellant out of the price of said food and accommodations, contrary to section 382 of the Penal Code. The affidavit was made, and warrant was issued January 21,1898; the crime was charged to have been committed on or about December 13, 1897, and for several days thereafter in the town of Manlius. The plaintiff Was not arrested on the warrant until April, 1898, and was not tried until June 27,1898, when he was convicted and sentenced to imprisonment in the Onondaga County Penitentiary for sixty days or to pay a fine of ten dollars. A commitment was made out by the justice, and under such commitment plaintiff was taken to the penitentiary. He was treated as prisoners usually were who were committed to that institution, and then, after being imprisoned there for five or six hours of one day, he was released, on an appeal being taken from the judgment to the County Court, and bail given, as we assume, although it does not very clearly appear from the record. The judgment of conviction was reversed by the County Court and a judgment reversing the conviction and discharging the'plaintiff herein from custody was entered November 29, 1899. This action
A motion for nonsuit was made at the close of the evidence on the grounds,
First. Because the defendant had shown probable cause of action against the plaintiff by showing a judgment in favor of defendant against the plaintiff in Justice’s Court.
Second. Because the litigation was not terminated in favor of the plaintiff when.this action was commenced.
The court nonsuited on the first ground without passing upon the second, holding the judgment of the justice grima facie evidence of probable cause, and refusing to submit the question of probable
In Burt v. Place (4 Wend. 593) it was held that a judgment in Justice’s Court in favor of the defendant waspri/ma fctcie evidence, merely, of probable cause, not conclusive evidence, and was subject to be overcome by other evidence in the cáse, including the judgment of the Common Pleas reversing the judgment of the justice. This case was a well-considered case aúd the opinion of the court reviewed many of the cases considered in Palmer v. Avery (supra). It was followed by Bacon, J., in the latter, case, but not .by Morgan, J.
We are not aware that this question has ever arisen or been passed upon by the courts of this State since the Palmer v. Avery .case, which was decided in 1864, nearly forty years ago.. It seems strange that such should be the case, when these actions for malicious prosecution are so frequently before the courts. It will hardly be useful to enter into a discussion of the question anew. It seems to us that the rule making the justice’s judgment conclusive evidence of
. This question does not appear to have been expressly raised in the case on the trial by motion for nonsuit or request to hold or charge. If it had been, and the court had been inclined to regard evidence of fraud, conspiracy or subornation necessary, the plaintiff might have given evidence upon that subject which he did not give on the trial and might certainly have asked to go to the jury upon the evidence already in the record upon the subject of the honesty of the judgment.
It is claimed that the justice was a lawyer and the attorney for the defendant, and that they counseled together as to this prose
There are many exceptions to the admission of évidence in the record, but only a few of them call for special consideration. What occurred at the penitentiary, what was done to the plaintiff there, was a proper subject of inquiry and evidence on the trial. The plaintiff was allowed to and did testify fully upon that subject. In addition to this, however, Mr. Markell, the superintendent of the penitentiary, was called. He was not able to say that he ever saw the plaintiff at the penitentiary, or that he was present at the time anything was done to him. In the face of' frequent and repeated objections on the part of the defendant and exceptions to the rulings of the court, this witness was permitted to testify to the invariable custom of the penitentiary authorities and employees in the treatment of prisoners brought there for imprisonment under conviction and sentence for crime, the questions asked and answered, the description taken, the measurements made, the entries upon books of' the answers made, of the description and measurements made,, the search of his person, the taking of photographs of his face, and to describe in detail the Bertillon system of measurements • which was always made. The court remarked in ruling upon this evidence that it was allowed upon the assumption that the plaintiff would show this uniform practice' was applied in his case. The plaintiff was called as a witness, as already stated, and gave an account of the treatment he received, which substantially conformed to the uniform custom' testified to by the superintendent. While, technically, the question as to what treatment the plaintiff was subjected to and the uniform custom • in the treatment of prisoners would be' unimportant and probably incompetent and improper, yet,
We see no reason for disturbing the verdict of the jury.
The judgment and order appealed from should be affirmed, with costs.
All concurred, except Laughlin, J., who concurred in result.
Judgment and order affirmed, with costs.