
    Ashby Deering, Plaintiff, v. Frederick Gebhard, Defendant.
    (Supreme Court, New York Trial Term,
    January, 1908.)
    Malicious prosecution — Evidence — Sufficiency of evidence — Malice and probable cause.
    Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a reasonably prudent man in his belief that the person ■ accused is guilty of the offense with which he is charged.
    Where the district attorney directed officers to subposna a witness before the grand jury in a case of unusual notoriety and newspaper reporters, becoming acquainted with the fact, came in throngs to a house where it was said the witness had been secreted; and the crowd, attempts to photograph the owner of the house when he arrived and loud talking finally led to efforts of a mounted policeman to drive persons away from in front of the house, and when the owner and a clerk from the office of his counsel and a policeman were attempting to leave the premises, a man with a camera tried to photograph the owner, to his great annoyance, such acts tended to create a breach of the peace; and, where a reporter apparently participating in such acts was arrested and thereafter brought an action against the owner of the house for malicious prosecution, a motion to dismiss the complaint should be granted.
    Action for malicious prosecution.
    At the close of the case the defendant moved to dismiss the complaint,
    
      
      First. Because the plaintiff had failed to prove any • cause of action against the defendant.
    
      Second. Because the plaintiff had failed to prove that the prosecution was instituted by the defendant.
    
      Third. That the plaintiff had failed to prove a want of probable cause.
    
      Fourth. That the plaintiff had failed to prove that the prosecution was instituted by malice on the part of the defendant.
    William F. Hart, for the plaintiff.
    Bowers & Sands (W. H. Van Benschoten, of counsel), for the defendant.
   Giegerich, J.

Taking up the points urged by the defendant’s counsel, it might be well to consider the things which it is incumbent upon a plaintiff to prove in a case of this character (for malicious prosecution), which are: first, that the defendant instigated the criminal proceedings against the plaintiff; second, that such prosecution was without probable cause; third, that it was accompanied by malice, and, fourth, that it terminated in favor of the plaintiff.

I am assuming, for the purposes of this motion, that the plaintiff has established the first and fourth propositions, thus leaving for discussion the question of probable cause and the question of malice.

How, what is probable cause? Probable cause is á reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a reasonably prudent "man in his belief that the person accused is guilty of the offense with which he is charged. It does not depend upon the guilt or innocence of the accused or upon the fact whether a crime has been committed. As was said by the Court of Appeals in the case of Rawson v. Leggett, 184 N. Y. 511: The question is not whether plaintiff’s evidence now given that he did not commit the crimes charged to him is true. The propriety of defendants’ conduct in causing him to he' indicted is to be decided by the facts as they appeared to be at the time the prosecution was instituted, and the question is whether these facts as they then appeared were such that a discreet and prudent person would have been led to the belief that the accused had committed the crime with which he was charged. If defendants had knowledge of facts actual or apparent strong enough to justify a reasonable man in the belief that they had lawful grounds for prosecuting the plaintiff in the manner complained of, then probable cause was present and this action will not lie.”

' The plaintiff in this case was charged with what is known technically in the books as disorderly conduct. According to the provisions of section ,1458 of the Consolidation Act, “ Every person in said city and county (meaning the city and county of Hew York) shall be deemed guilty of disorderly conduct that tends to a • breach of the peace who shall in any thoroughfare or public place in said city and county commit any of the following offenses, that is to say,”" — I shall not read the first and second subdivisions, because they do not apply to this case, but the third does —“ Every person who shall use any. threatening, abusive, or insulting, behavior with intent to provoke a breach of the peace or whereby a breach -of the peace may be occasioned.” These provisions have been preserved by the Greater Hew York Charter and were in force when the arrest in question was made.

The Appellate Division of the Second Department in the case of People ex rel. Frank v. Davis, reported in 80 Appellate Division Deports, at page 454, says: Disorderly conduct, in the abstract, does not constitute any crime known to the law; it is only when it ‘ tends to a breach of the peace > under the circumstances detailed in section 1458 of the Consolidation Act, that it constitutes a minor offense cognizable by the police magistrates of the city of Hew York, and when it in fact threatens to disturb the peace it is a misde> meanor as well under section 675 of the, Penal Code as at common law, and not within the jurisdiction of the police magistrates, but of the Court of Special Sessions;” citing Laws of 1895, chap, 601, § 14; Laws of 1901, chap. 466, § 1409.

How, considering the evidence in the most favorable light to the plaintiff, I am of the opinion that upon the facts disclosed the defendant was justified in making the charge which it is claimed he made; and I shall assume, as I said before, for the purpose of this motion, that he instigated the same. . •

Let us look at the facts as they were presented by the plaintiff. It appears that certain persons styled “ county detectives,” attached to the office of -the district attorney of this county, were directed by him to serve a subpoena upon one Reginald Vanderbilt to appear as a witness before the grand jury in an inquiry or proceeding against one Richard Canfield.

For some reason not disclosed, newspaper reporters became acquainted with the fact that Mr. Vanderbilt was to be subpoenaed as a witness and they were present, in numbers variously estimated by the witnesses who have testified in this case, at the house of the defendant, where it is claimed that Vanderbilt had been secreted.

-It is without contradiction, so far as I can discover, that the defendant told the reporters, who were assembled, on the morning of the day in question, that Mr. Vanderbilt was not in the house. It appears that a large number of persons had congregated in front of the defendant’s premises, as well as the adjoining, premises, many of whom were reporters in search of news; that they conversed in tones loud enough to be heard in the premises 100 Fifth avenue, of which the defendant was a part owner with his sister Mrs. Heilson, and he also owned with her the adjoining premises Ho. 98 Fifth avenue, in which the defendant had an apartment, or room.- It also appears that the lower part of Ho. 98 was leased to a tenant named Winteroth, who there conducted a piano business. It further appears that, upon the morning of the day in question, the defendant drove up to his residence in an electric cab; that, as he attempted to alight, efforts were made to snap a camera at Mm; that the cab was surrounded by reporters who were in the company of the man who attempted so to take the defendant’s picture; that he found it impossible to alight, and that the conditions instead of improving seemed to grow worse, it being conceded by the plaintiff’s witness that it became necessary on the afternoon of the day in question, while the plaintiff was there, for a mounted policeman to drive persons from the sidewalk in front of 100 and 98 Fifth avenue. The defendant telephoned to his attorneys, Messrs. Bowers & Sands, on the afternoon of the day in question in order to obtain their advice in the matter; but, unfortunately, it being a Saturday afternoon, everyone had departed for the day except Mr. McCarthy, who said he was the assistant managing clerk. Mr. McCarthy hurried to the defendant’s house where he conferred with the defendant and also with patrolman Donnelly, whose aid and assistance he sought. The policeman hesitated to act and telephoned to his sergeant for instructions and was instructed to act upon his discretion.

Then, in full view of everybody, Mr. McCarthy, the policeman and the defendant left the house; and, as they did so, attempts were immediately made by a man possessing a camera to take a photograph of the defendant, which greatly excited and annoyed him and a crowd gathered around the photographer. . • ,

Both McCarthy and the defendant told the crowd that Mr. Vanderbilt was not in the house and that they must disperse. The crowd jeered; and, laughing with the rest, was the plaintiff in this case.

All these acts constituted conduct that tended to a breach of the peace; and there is a failure to prove either a want of probable cause or the presence of malice on the part of the defendant, both of which, as I stated at the outset, are essential elements in an action of this kind.

Considerable stress seems to be laid by the counsel for the plaintiff upon the fact that the plaintiff is a newspaper reporter. ¡Reporters in quest of news have no superior rights over others in the streets or elsewhere and they are amenable to our laws just as much as all other citizens. Therefore, if a reporter, in his zeal to obtain news, voluntarily places himself in a position where a reasonably prudent man would he warranted in believing that the reporter had violated the law, and he is arrested accordingly, although it may turn out that he is innocent, he is, just like all other persons in a similar situation, without remedy.

For these reasons, as well as others not discussed nor necessary to he discussed, the motion to dismiss the complaint is granted.

Motion granted.  