Art. 7. Pleading.

WHEREFORE plaintiff demands judgment against the defendants for his damages aforesaid, in the sum of $50,000, with interest thereon from said date, besides the costs of this action.

HORWITZ & HERSHFIELD,

Plaintiff's Attorneys.

Malicious Prosecution; Joined with False Imprisonment. SUPREME COURT - KINGS COUNTY.

FREDERICK B. GEORGE, Plaintiff,

agst.

DAVID JOHNSTON and EDWARD F. LIN

TON, Defendants.

Complaint, 25 App. Div. 125,

The plaintiff complaining of the defendants alleges:

First. That at the city of Brooklyn and on or about the 15th day of June, 1895, the defendants wrongfully and maliciously concerted, and conspired together, and wrongfully, unlawfully, and maliciously, and without reasonable or probable cause procured, and caused to be procured from a police magistrate of the said city of Brooklyn a warrant for the arrest and apprehension of plaintiff upon a false, unfounded, and malicious charge of grand larceny. That said charge was preferred against the plaintiff by the defendant, David Johnson, who acted in his own behalf, and at the request and instigation. of the codefendant, Edward F. Linton.

Second. That on the 29th of June, 1895, the defendants wrongfully, maliciously, and unlawfully, and without any reasonable or probable cause, procured the arrest and apprehension of plaintiff, and caused the plaintiff to be detained against his will, forcibly, wrongfully, and maliciously upon said false and malicious charge.

Third. That by virtue of the said warrant plaintiff was arrested by an officer of the law at his place of business in the city of New York and carried before the police magistrate issuing the said warrant, and confined in a room, crowded and filthy, and was then and there compelled to give bond in the sum of $5,000 to appear for examination therein.

Fourth. That defendants falsely and maliciously and without any reasonable or probable cause procured plaintiff to be arraigned before said court and compelled him to plead to said felonious charges.

Fifth. That plaintiff pleaded not guilty to the said false and malicious charge so preferred against him; that plaintiff was deprived of his liberty from the time of his arrest, viz., the 29th day of June, until the 3d day of July, 1895, the day set by the said magistrate

Art. 7. Pleading.

for his examination, when upon statements and allegations made by the district attorney representing Kings county, and also on behalf of the defendants, touching and concerning the said supposed offense, then and there, to wit, on the 3d day of July, 1896, the said police magistrate before whom plaintiff was arraigned, adjudged and determined that the said plaintiff was not guilty of the said supposed offense, and then and there caused the said plaintiff to be discharged and acquitted of the said supposed crime of grand larceny, and the said complaint and prosecution therein dismissed; that the defendants and each of them have abandoned the said proceedings, and that the same was wholly ended and determined in plaintiff's favor before the commencement of this action.

Sixth. That by reason of the wrongful and malicious charges preferred against the plaintiff as hereinbefore set forth, the plaintiff has been greatly injured in his credit and reputation, and brought into public scandal, infamy, and disgrace with his neighbors, to whom his innocence in the premises is unknown, and has suffered great anxiety and pain of body and mind, compelled and obliged to lay out and expend sums of money in procuring his discharge from the said imprisonment, and defending himself in the premises and the manifestation of his innocence in that behalf and by reason, and by means of the said premises the plaintiff has suffered damages in the sum of $5,000.

WHEREFORE plaintiff demands judgment against the defendant for the sum of $5,000, together with the costs and disbursements of this action.

The defendants appearing in this action by Israel F. Fischer, their attorney, answer the complaint herein as follows:

First. They aver that heretofore in the city of Brooklyn, and on or about the 15th day of June, 1895, the plaintiff did take and carry

Art. 8. Evidence.

away the wooden fence belonging to the defendant Johnson, and did store the same in the premises occupied by the plaintiff; that because of such larceny, the defendant Johnson did cause a warrant to be issued against this plaintiff, under which he was arrested and arraigned before a police magistrate of the city of Brooklyn.

That upon such arraignment the defendant Johnson, upon the advice of the district attorney for Kings county, who appeared and prosecuted said case, amended his charge from one of grand larceny to one of petit larceny; that upon the said trial this plaintiff admitted the taking of said fence, and the storing thereof in his cellar, but denied that he did so with criminal intent, and upon said state of facts the trial magistrate, after reprimanding the plaintiff, dismissed said complaint.

These defendants deny that they wrongfully and maliciously, or otherwise, conspired in this plaintiff's arrest, or that the warrant so procured against him was obtained wrongfully, unlawfully, or maliciously, or without reasonable or probable cause, or that his arrest thereunder was procured wrongfully, unlawfully, or maliciously, or that the plaintiff has suffered damage in the sum of $5,000, or in any sum whatever.

Second. Except as hereinbefore set forth, these defendants deny each and every allegation set forth in paragraphs first, second, third, fourth, and fifth of the complaint.

WHEREFORE defendants demand that the complaint herein be dismissed, with costs.

Where defendant with full knowledge of the circumstances paid a sum of money and subsequently commenced an action to recover it back on the ground of overpayment, such facts were held to

Art. 8. Evidence.

warrant the inference that the prosecution was vexatious and coupled with an avowed purpose of the defendant to make the plaintiff come four times a distance of fourteen miles, to show express malice. Pangburn v. Bull, 1 Wend. 345.

Where the prosecution complained of was plaintiff's arrest on a charge of feloniously taking property,- Held, that evidence that the party making the complaint knew that a third party had a prima facie right to the property was sufficient evidence of want of probable cause. Weaver v. Townsend, 14 Wend. 192.

Proof that the prosecution complained of was voluntarily discontinued is prima facie evidence of want of probable cause, and places upon defendant the burden of showing probable cause. But the suffering of a judgment of non pros., or of a nonsuit, has not the same effect. The mere omission to prosecute a suit does not furnish sufficient ground for an action of malicious prosecution. Burhans v. Sanford, 19 Wend. 417.

The mere fact that the plaintiff was acquitted in the former prosecution is not of itself evidence of want of probable cause. Palmer v. Palmer, 8 App. Div. 331, 40 N. Y. Supp. 829.

Where the plaintiff did not take the stand as a witness, but merely proved an alibi, and that the defendant did not press the criminal prosecution against him and gave no direct evidence that he was not the person charged by defendant with larceny, it was held that he had failed to prove that the defendant did not have probable cause. Keating v. Fitts, 13 App. Div. 1, 77 St. Rep. 124, 43 N. Y. Supp. 124.

The fact that in a former prosecution the plaintiff was acquitted by the jury is not of itself evidence that probable cause did not exist, because the want of probable cause does not depend upon whether the accused was guilty or innocent, but whether the prosecutor had reasonable cause to believe him guilty. Young v. Lyall, 23 St. Rep. 215, 57 N. Y. Super. 39, 5 N. Y. Supp. 11.

Where, after the arrest, the defendant altered the charge to one of vagrancy and the plaintiff was detained under such charge, the charge can be justified only by proof that the plaintiff was, as a matter of fact, guilty of the offense, and if the evidence upon this fact is conflicting and the plaintiff was acquitted, the jury in a civil action was justified in finding want of probable cause and the complaint should not be dismissed. Francis v. Tilyou, 26 App. Div. 340, 83 St. Rep. 799, 49 N. Y. Supp. 799.

Art. 8. Evidence.

In Kutner v. Fargo, 34 App. Div. 319, 88 St. Rep. 332, 54 N. Y. Supp. 332, it was stated that the plaintiff must prove something more than his innocence. He is bound affirmatively to show want of probable cause. The court said: "There may doubtless be acts where the plaintiff knows nothing of the facts and circumstances upon which the arrest was procured. There may even be cases where he can ascertain nothing upon that head, and where the bald fact of his arrest, coupled with the circumstances attending it, may suffice, prima facie, to show a want of probable cause. But that is not this case." It was held that the circumstances upon which the defendant acted were known to the plaintiff, and he merely put in evidence the indictment; he had failed to show want of probable cause.

Where the prosecution complained of was the arrest of the debtor on the ground of obtaining goods upon false representations, and where it was shown that the plaintiff, on applying for credit, represented that his property consisted of certain real estate and referred to the records of the county clerk's office as records of ownership, which representation was true,- Held, that want of probable cause was shown, notwithstanding that the defendant on searching had failed to discover the evidences of plaintiff's title. Grinnel v. Stewart, 32 Barb. 544, 12 Abb. Pr. 220, 20 How. Pr. 478.

If the suspicious circumstances which led to plaintiff's arrest might have been explained by proper investigation, the omission to make such investigation is evidence of absence of probable cause. Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321, 98 St. Rep. 1016, 64 N. Y. Supp. 1016.

Where the charge for which the plaintiff had been prosecuted was larceny of some boards, testimony to show that no demand. for the return of the boards had ever been made was held to be admissible as bearing upon the question of want of probable cause, and also upon the question of malice. George v. Johnson, 25 App. Div. 125, 83 St. Rep. 203, 49 N. Y. Supp. 203.

Where the plaintiff, a plumber, had been arrested on defendant's complaint for forcibly removing plumbing from defendant's building, for which payment had been refused, it was held that not only did the evidence show a probable cause, but the existence of a real cause. Anderson v. How, 116 N. Y. 336. See this case limited in Wass v. Stephens, 128 N. Y. 129.