144 N.Y.S. 543 | N.Y. App. Div. | 1913
The action is for malicious prosecution. The plaintiff sufficiently alleges that the defendant appeared in the City Magistrate’s Court and charged and accused him with having committed the crime of larceny, “and prayed” that plaintiff be required to answer in said court for the alleged crime, whereupon a summons was duly issued and served on plaintiff requiring him “under penalty of the law” to appear in said court at a time and place specified, “ there to answer the criminal charge made against him ” by the defendant; that the charge was false and defendant knew it to be false, and made it maliciously, and instituted and prosecuted the proceeding without any reasonable or probable cause to believe that
The summons was issued pursuant to the provisions of section 82 of chapter 659 of the Laws of 1910,
The learned counsel for the respondent endeavors to sustain the judgment on the ground that an action for the malicious prosecution of a criminal proceeding will not lie unless the
In the year 1848 the English Parliament enacted a Summary Jurisdiction Act (11 & 12 Viet. chap. 43), which was amended in 1881 (44 & 45 Viet. chap. 24, § 4, subd. 2), providing for the commencement of certain criminal actions by summons. The dismissal of a prosecution instituted by summons under the English act affords the basis in that jurisdiction for an action for malicious prosecution. (Weston v. Beeman, 27 L. J. [N. S.] Exch. 57; Rayson v. South London Tramways Co., L. R. [1893] 2 Q. B. 304.) A like ruling was made by the Supreme Court of New Brunswick in 1868 where the criminal prosecu
It had long been the practice of magistrates in New York to issue summonses for the investigation of criminal charges, although * authority therefor, if conferred, does not appear to have been expressly regulated by statute until 1910, when the statute in question, which is quite similar to the English statute, was enacted. It was held by the City Court at Special Term, and by the United States Circuit Court of Appeals in this district, that instigating a criminal prosecution by applying to a magistrate for the issuance of a summons charging a crime, whereby the accused was put to the trouble annoyance, humiliation and expense of meeting the charge, although on investigation it was dismissed, constituted the commencement of a criminal prosecution, and on the termination thereof in favor of the accused an action for malicious prosecution would lie. (Ackermann v. Berriman, 61 Misc. Rep. 165; Cook v. Proskey, 138 Fed. Rep. 213.)
In Holmes v. Johnson (44 N. C. [Busbee’s Law] 44),. decided in 1852, the court, in a well-considered opinion, in sustaining an action for malicious prosecution where a warrant had been signed by a justice of the peace but was never delivered to an officer for execution, said: “ ‘ The foundation of an action for a malicious prosecution is the malice of the defendant, either express or implied; and whatever engines of the law malice may employ to compass its evil designs against innocent and unoffending persons, whether in the shape of indictment or information, which charge a party with crimes injurious to his fame and reputation, and tend to deprive him of his liberty; or whether such malice may be evinced by malicious arrests or by exhibiting groundless accusations, merely with a view to occasion expense to the party who is under the -necessity of defending himself against them, the action on the case affords an adequate remedy to the party injured.’ ”
It would seem on principle that if an action for malicious prosecution will lie where a warrant is not executed or placed in the hands of an officer for execution, and the accused has not been summoned to court, an action should be, sustained where, pursuant to statutory authority, the plaintiff has, on a
It follows that the judgment should be reversed and a new ■ trial ordered, with costs to appellant to abide the event.
Ingraham, P. J., McLaughlin and Dowling, JJ., concurred; Hotchkiss, J., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.
Since amd. by Laws of 1913, chap. 372.—[Rep.