
    Benjamin W. Hobson, Respondent, v. William T. Koch, Appellant.
    First Department,
    November 5, 1906.
    Malicious prosecution — facts showing probable cause.
    The defendant caused the plaintiff’s arrest for larceny in obtaining goods and money upon a- check the indorsement of which had been forged, and which check presumably had been abstracted from the mails. Before causing the arrest he consulted the maker of the check and was told that the forged indorsement resembled the handwriting of a letter carrier on that route. Aided by the postal authorities, the defendant and his clerks, who had seen the person who cashed the check, identified the plaintiff, a letter carrier, as such person, after seeing him both in uniform and street clothes. The defendant, on laying the . case before the police authorities, was informed that the plaintiff was off duty on the day the check was presented, and was advised to charge him with the crime.
    
      Held, that, as a matter of law, the facts showed probable cause, which depends, not upon the actual guilt of the person prosecuted, but upon the prosecutor’s belief in his guilt, based upon reasonable grounds;
    That, on undisputed facts, the question of the existence of probable cause is one ©f law for the court rather than of fact for the jury.
    Appeal by the defendant, William T. Koeli, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 29th day of January, 1906, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 30th day of January, 1906, denying the defendant’s motion for a new trial inade upon the minutes.
    
      Emanuel J. Myers, for the appellant.
    
      Herbert R. Linburg, for the respondent.
   Houghton, J.:

The action is for malicious prosecution. The.facts and circumstances leading to plaintiff’s arrest are as follows:

On the 28tli of January, 1902, at about one o’clock p. m., a man, whose identity is still unknown, tendered to the drygoods firm of II. C. F. Koch & Co., in payment for a lady’s coat which he bargained for a check of James Everard’s Breweries, drawn by its president, payable to and purporting to be indorsed by J. Waitzfelder. The defendant'is a member of the dry goods firm, and the saleswoman consulted him as to accepting the check and delivering the coat and paying the ' difference in cash, which defendant directed to be done. Shortly afterwards it was ascertained that the check had been lost, presumably in the mail, and^that the indorsement.was a forgery. The defendant instituted inquiries to endeavor to ascertain who committed the larceny, and to that end consulted the officers of the drawers of the check and the indorser, and ascertained that the check had been mailed but never delivered. The president of the brewing company called defendant’s attention to-the fact that the forged indorsement was similar in handwriting to that of a mail carrier who delivered letters at the brewery company’s office, and suggested that the letter might have been abstracted from the mails. Defendant notified the post office department of the crime and requested an investigation, and an inspector was detailed to investigate the matter, and a description of the man who had uttered the check was given to him. The inspector reported to defendant that the description did not correspond to the carrier on the Everard’s Breweries route, but that it did correspond with the appearance of another carrier who was a friend of his, and requested that defendant come to the post office and see if he- could identify the man. The. defendant did so, and. was given opportunity to look at several carriers, and announced that none of them was the man. On being told to wait until other carriers came in from their routes, he did'so and identified this plaintiff, who was then in his uniform. To makó sure of no mistake, the defendant requested that he be .permitted to see the plaintiff in citizen’s clothes such as he wore on the day the check was cashed. The inspector arranged that this be done and defendant positively identified the plaintiff. ■ Thereupon the inspector arranged that the saleswoman and cashier who had cashed the check should see the various mail carriers, and . they identified the plaintiff while in his uniform, and were confirmed in their identification when he was in citizen’s clothes. The inspector notified the defendant that he would continue his investigation as to whether or not the letter containing the check had been abstracted from the mails. After a delay of several months the inspector informed the defendant that it was impossible for him to connect the plaintiff, or any other letter carrier or postal employee, with the cashing of the check, offering, however, to submit to the police department any facts in liis possession. The defendant then consulted the sergeant of police in his precinct and laid the facts before him, and he said he would make further investigation, and finally reported to the defendant that he had found that the plaintiff was off duty on the twenty-eighth day of January, without assigned cause, and that no one could tell why he was absent, and .that plaintiff was the man, and asked that defendant make, complaint. This the defendant did and the plaintiff was arrested. On his arrest the officer told him that the crime charged against him was committed on the twenty-eighth day of January, and asked him where he was on that day, and plaintiff replied that he could not tell, and the officer remarked that plaintiff better find out if he wanted to clear himself from the charge.

The preliminary hearing was had, and in behalf of the People the presentation and cashing of the. check and delivery of the merchandise obtained thereon and the forgery of the indorsement-were proved, and the plaintiff was identified as the man by the defendant and the saleswoman and cashier and another saleswoman who was present, and tried on the coat by request.

In defense the plaintiff proved by himself and other witnesses •that he was in attendance at the funeral of a relative in Hew Jersey on the day and hour in question, and he was thereupon discharged.

In addition, the defendant testified that ■ he had no personal acquaintance with plaintiff, and had no motive in charging him with the crime other than that he deemed it 1ns duty as a citizen and as a merchant to prosecute a man who had passed a forged check and obtained money and goods thereon; and that he believed when he entered complaint, not only from his own identification but from that of his employees, that-the plaintiff was in fact the man who had committed the crime, and that he ‘knew nothing of the piar»-’ tiff’s defense of alibi until it was developed on the hearing before the magistrate.

All of the above facts were undisputed, except that the’ plaintiff denied that on-his arrest the police officer asked him where he was on the twenty-eighth of January, and that he replied that he did not know. This occurred, however, after the complaint had been made and the warrant for plaintiff’s arrest issued.

On the undisputed facts existing at the time plaintiff was arrested we think the defendant showed, as matter of law, that probable cause _ existed and that the plaintiff’s complaint should have been dismissed. .

The investigation which defendant instituted was cautious and painstaking. That a crime had been committed by some one was beyond controversy. The identification of plaintiff as the man who had committed it was far from reckless. He was not pointed out as the man who was suspected, but the witnesses were compelled" to pick him out from many other letter carriers in similar uniforms. Even then, to make assurance doubly - sure, the. witnesses .asked opportunity to see the plaintiff in citizen’s clothes; and dressed in • that manner, not only the defendant but his employees positively identified him. To substantiate this identification the defendant was informed by the sergeant of police that the plaintiff' was off duty on the day the crime was committed, and tiiat his superiors did not know why, or where he was. ^

These facts constituted reasonable grounds for the prosecution of plaintiff, and furnished probable cause for his arrest. “ Probable cause does not necessarily" depend upon the actual guilt of the person prosecuted, but may rest upon the prosecutor’s belief in his guilt when based on reasonable grounds. One may act upon what ;,appears to be true, even if it turns out to be false, provided he believes it to be true and the appearances are sufficient to justify the belief as reasonable.” (Burt v. Smith, 181 N. Y. 1, 6.) When the facts are undisputed, the question of the existence of probable cause is one of law for the court rather than of fact for the jury. (Rawson v. Leggett, 184 N. Y. 504.)

It is urged that the fact that the post office inspector reported to the defendant tiiat he could not connect the cashing of the check with the mail carrier suspected, or with any man connected with the post office department, showed the subsequent prosecution . malicious and without probable cause. This same inspector, inferentially, advised consulting the police force. He communicated to the defendant no new facts which would tend to put him upon further inquiry or to shake his belief in his own and. his employees’ identification of the plaintiff. On the contrary, that identification • was strengthened by the report of the sergeant of police as to absence from duty of the plaintiff on the day the crime was committed. The fact that the post office department-was unwilling to take action did not, under the circumstances, destroy the probable cause which existed, or make defendant liable if he proceeded independently.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, Ingraham, Laughlin and Scott, JJ., concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  