
    William M. Crandell, Respondent, v. The Long Island Railroad Company, Appellant.
    Second Department,
    October 12, 1909.
    Malicious prosecution—want of probable cause.
    Where, in an action for malicious prosecution, it appears that plaintiff was walking through a railroad yard with a fellow-workman and was asked to hold'a package for him; that while he was doing so defendant’s special officer ‘ ‘ grabbed ” him, and upon the package being opened it was found to contain brass journal boxes identical with certain ones missing from cars in the yard, the plaintiff fails to show want of probable cause. ■
    HIRSCHBERG, P. J., dissented.
    Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Queens on the 21st day of December, 1908, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 13tli day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Matthew J. Keany [Joseph F. Keany with him on the brief], for the appellant.
    
      Williams & Richardson [John E. Walker and George V. S. Williams with them on the brief], for the respondent.
   Per Curiam:

The action is malicious prosecution. The plaintiff was arrested, by a special officer of the defendant and taken to the police station. There he was charged with petit larceny. He was arraigned on the following morning under a charge of violation of section 635 of the Penal Code and of a petit larceny. The hearing was adjourned and the plaintiff was lodged in jail for two days before he secured bail. He waived examination, was held for the grand jury, indicted, tried and acquitted. We think that upon the evidence of the plaintiff and the uucontradicted evidence in the case the plaintiff failed to give sufficient proof of the want of probable cause on the part of the defendant. The plaintiff was defendant’s brakeman, who worked nights principally in a yard, quitting work usually at six . A. m. On the night of his arrest he left the yard at four-thirty a. 34i. with permission to go fishing, in company with Puff, a fellow-brakeman. It was then dark. After they had gone about J00 or 500 feet from the yard and along the road, Puff took up a package from the side of the walk wrapped in newspaper and weighing about thirty or forty pounds. He requested the plaintiff to hold it for him until he had lighted his pipe. The plaintiff walked along carrying the y>ackage for thirty to forty feet, when the defendant’s special officer “grabbed” him and said, “Now, I have got you; what is in that package ? ” The plaintiff said, “ I didn’t do anything ; I don’t know what is in the package; yon will have to ask him,” i. e., Puff. The plaintiff testifies that he could not make his captor understand anything, so he resisted arrest. The package when opened contained brass journal boxes such as were used on the defendant’s railway cars then in the yard. A witness for the plaintiff testified that there were 600 or 700 cars then in the yard, and that one could not discover whether such brasses were missing until a car was moved, or by inspection of each car. On the following morning examination showed that certain brasses identical with those in that package were missing from certain cars in that yard. W e think that upon this evidence, aside from that controverted, the plaintiff failed to show that the defendant did not act in this prosecution upon such apparent facts that would lead a discreet and prudent man to believe that these brasses had been taken unlawfully by or with the connivance of the plaintiff from the cars of the defendant.

The judgment is reversed and a new trial is granted, costs to abide the event.

Jenks, Burr, Rich and Miller, JJ., concurred; Hirschberq, P. J., dissented.

Judgment aud order reversed and new trial granted, costs to abide the event.  