150 N.Y.S. 440 | N.Y. App. Div. | 1914
The plaintiff avers that defendant wrongfully, maliciously and without probable cause procured his arrest and prosecution before a magistrate, by whom he was discharged. Upon the complaint and an affidavit repeating such averment, with the addition in effect that the arrest was for disorderly conduct and that the evidence before the magistrate showed plaintiff’s innocence, the defendant was arrested upon the order now sought to be vacated. The complaint avers; the affidavit should but does not present evidentiary facts. The plaintiff accuses defendant of malice, but states no fact indicating it, nor does he fulfill the burden of proving absence of probable cause, for his assertion is not evidence. Were the facts, real or apparent, such as would justify a reasonable man in the belief that he had lawful grounds for invoking the interposition of the magistrate ? That cannot be known, as no facts are stated. The judge, whose order of arrest is sought, should have the facts, and not the plaintiff’s conclusion of their probative tendencies. The Code of Civil Procedure (§ 557) requires that it appear by affidavit “ that a sufficient cause of action exists,” as prescribed by section 549. The statement of a cause of action in the complaint does not make its existence appear. The discharge by the magistrate merely determines that the facts proven before him do not show probable guilt, but he did not consider whether the facts so appeared to the defendant as to justify him in believing them to be true and acting upon them. The Code of Criminal Procedure (§ 207) requires the magistrate to discharge a prisoner “if it appear, either that a crime has not been committed, or that there is no sufficient cause to believe the defendant guilty thereof.” The magistrate presumably has the real facts evolved by an orderly system of judicial investigation. The complainant may in good faith act upon such facts, real or apparent, as would convince the judgment of a prudent man. If the magistrate hold the prisoner, his decision, I will assume, shows probable cause of guilt, and hence probable cause for causing the arrest. (Francisco v. Schmeelk, 156 App. Div. 335.) If he discharge him, it may be evidence that the real facts do not tally with the apparent facts, but that does not tend to
The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order of arrest granted, with ten dollars costs.
Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate order of arrest granted, with ten dollars costs.