122 N.Y.S. 539 | N.Y. App. Div. | 1910
This is an action for malicious prosecution. At the close of plain.tiff’s case defendant moved for a nonsuit upon the ground that it' affirmatively appeared that probable cause existed. Decision was reserved and the trial proceeded. At the close of the entire case the motion was renewed, and a motion was also made to direct a verdict for defendant upon the same ground. Decisión was • again reserved, and the court submitted the case to the jury to find a general verdict. The jury found for plaintiff in the sum of $2,000. Thereafter the verdict was set aside, and'the motion to dismiss the complaint was granted, and from the judgment entered ■ thereon plaintiff appeals.
In the- early part of 1904 defendant opened an office in East Hew York for the transaction of the business of-a real estate broker under the name of Linwood Bealty Company. Plaintiff was employed as general manager. Shortly thereafter, through the efforts of .plaintiff acting as defendant’s employee, one Beingold obtained a loan from the Title Guarantee and Trust Company upon buildings that he was then erecting, which was to be advanced to him in installments as the work progressed. It was conceded that defendant was entitled to receive from him as commissions for procuring the loan the sum of $180. Plaintiff admitted that when the first installment upon the loan was paid he received from Beingold the sum of $50. The question in this case is whether defendant had probable cause to believe that this money-was any part of the commission belonging to him. Plaintiff testified that while the negotiations for the loan wére in progress Beingold came into the office on several occasions and finally, said to him that he was -an illiterate man ; that if plaintiff after office hours would go over his contracts and foot up his accounts he would compensate him for his services;
Defendant testified that Reingold told him that this sum of fifty dollars was paid to plaintiff on account of the commissions due to defendant for procuring the loan. A witness called for defendant testified to having heard Rein gold make similar statements. Rein-gold was not called as a witness, either before the magistrate or on the trial, and defendant admitted that on the last day when the hearing was set down before the magistrate Reingold was present and said that he had made plaintiff a present of the fifty dollars, and that if called upon he would so testify.
There was a conflict of testimony as to what occurred when defendant accused plaintiff of stealing the fifty dollars, but defendant did not deny that plaintiff spoke to him about keeping Rein-
The judgment arid order appealed from should be reversed, and a hew trial granted, costs to abide the event. -
Hirschberg, P. J., Jenks and Thomas, Jj., concurred; Woodward, J., voted to reinstate the verdict.
Judgment and order reversed and new trial- granted, costs to abidé the event.