
    Guy F. Fetzer, Respondent, v. James V. Burlew, Appellant.
    Fourth Department,
    July 12, 1906.
    Malicious prosecution — when want of probable cause is question of law —malice question for jury — evidence of want of malice.
    ¡En an action for malicious prosecution the question of probable cause is for the ' court if there be no conflict in the evidence and contrary inferences may not fairly be drawn therefrom.
    When it is undisputed that the plaintiff went to the defendant’s store in his absence, and having a running account with the defendant, took certain goods and left a memorandum thereof, and that the deñ endant on his return charged the goods to the plaintiff and subsequently put the account in the hands of a justice of the peace for collection by civil action, and-after failing to compel payment had the plaintiff arrested for stealing the goods, it is apparent that the defendant tried to collect the debt by a criminal prosecution, and it is not error to hold as a matter of law that there was no probable cause.
    But in such action the question of the defendant’s malice is always for the jury, although want of probable cause be established as a matter of law, and it is error to refuse to submit this question to the jury and to charge that the plaintiff is entitled to substantial damages.
    Although under such circumstances what occurred between the magistrate and the defendant does not constitute a defense, it is error to exclude such evidence, for it is relevant on the question of malice.
    Appeal by the defendant, James V. Burlew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 17th day of April, 1905, upon the verdict of a jury for $100, and also from an order bearing date the 10th day of April, 1905, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      James O. Sebring, for the appellant.
    
      Francis E. Wood, for the respondent.
   Spring, J.:

The action is for malicious prosecution. The plaintiff had been in the employ of the defendant as a meat cutter in Painted Post in said county of Steuben, and in ¡November, 1901, started a small shop in that village. Occasionally when in need of meat he went to the defendant’s shop purchasing a few pounds, sometimes doing the cutting and weighing himself and paying cash or receiving credit as he preferred. In January, 1905, he went to the defendant’s shop and there was no one in charge. Mrs. Craig, a lady customer, was waiting. The plaintiff inquired for the defendant and when informed of his absence weighed and took away ten and one-half pounds of pork. He left a slip of paper on the counter informing the defendant that he had taken this quantity of pork, notified Mrs. Craig and asked her to call the attention of the defendant on his return to the memorandum, which she did. The defendant caused the pork to be charged to the plaintiff at one dollar and five cents. Shortly after, this item with another of three dollars and sixty-five cents was presented to the plaintiff by the agent of the defendant and payment demanded, but the plaintiff neglected to respond. Later in the month of January, the account containing the two items was left by the defendant for collection with a justice of the peace, and that officer wrote to the plaintiff on January twenty-seventh two letters to the effect that the account was left with him “for immediate settlement.” The account was not paid, and on the second of February, upon the information and deposition of the defendant charging the plaintiff with larceny in taking ten and a half pounds of pork, a warrant was issued by the magistrate for the arrest of the plaintiff, and he was taken into custody by an officer and brought before the magistrate, and upon the next day a trial was had and the plaintiff was discharged at the close of the People’s case.

The court charged the jury that the plaintiff was entitled to recover substantial damages and declined to submit the question of want of probable cause or of the malice of the defendant, although requested so to do by the counsel for the defendant.

We think that the undisputed evidence shows that the defendant had no justification for causing the arrest of the plaintiff charging him with the commission of a crime. The defendant had trusted the plaintiff before for meat obtained at his shop. He treated this taking as a sale and entered the item on his account book. He was informed by Mrs. Craig that the plaintiff had taken the pork and left a minute of the quantity; and she testified that he saw the paper, and her testimony must be correct for he caused the entry to be made in his book. He left this item, with another, with the justice for collection. It is clear, therefore, that he regarded this as an account against the plaintiff, and his attempt to make it the basis of a criminal accusation was unwarranted.

It is 'elementary that two of the essential elements of the action for malicious prosecution are the want of probable cause and the malice of the defendant in instituting the criminal proceeding against the plaintiff in the action.

Probable cause is an elastic term, and much latitude is given to one who is seeking to prosecute another either civilly or criminally; yet he must have reasonable cause and warrant as a prudent man to justify him in charging a person with the commission of a crime and causing his apprehension therefor. (Burt v. Smith, 181 N. Y. 1, 5 et seq.)

Probable cause is a question of law for the court if there is no conflict in the evidence and if contrary inferences may not fairly be drawn therefrom. (Hazzard v. Flury, 120 N. Y. 223; Burt v. Smith, supra, 8 ; Besson v. Southard, 10 N. Y. 236; Anderson v. How, 116 id. 336, 338.)

In Hazzard v. Flury (supra) the plaintiff obtained of the defendant a quantity of rugs to be returned on demand. Subsequently the' defendant notified the plaintiff there was unpaid for these rugs a certain sum, and a settlement was had by which the plaintiff agreed to pay in part the amount due and deliver thirteen other rugs in lieu of those taken. The money was paid along in installments, the plaintiff, at the time of the last payment, promising to deliver the fugs in a few days. Just before this payment the defendant had made complaint in writing charging the plaintiff with appropriating one rug. A warrant was issued the same day, but the plaintiff was not arrested until several weeks later, and in the meantime the plaintiff had tendered to the defendant, in fulfillment of his contract, thirteen rugs, which the latter declined to accept. In the action for malicious prosecution the trial judge instructed the jury, as matter of law, that the arrest was without probable cause, but submitted to the jury the question of malice, and the judgment in favor of the plaintiff was sustained.

In the present case there was no reasonable probability that the plaintiff was guilty of the crime imputed to him, and there was, consequently, no justification for his arrest, and the court properly so held as matter of law.

The refusal of the trial judge to permit the jury to pass upon the question of the malice of the defendant is more troublesome, and we think cannot be sustained. The jury might have inferred malice from the unwarranted apprehension of the defendant, but even they were' not bound to draw that inference. (Langley v. East River Gas Co., 41 App. Div. 470; Wanser v. Wyckoff, 9 Hun, 178.)

The arrest might have been without legal excuse and still not have been willfully or maliciously caused by the defendant. He may have believed that the facts within his knowledge were sufficient to authorize the arrest of the plaintiff. In any event the jury should have been permitted to consider the motives which influenced him. While there was ample .evidence tending to show that the defendant was resorting to the criminal law to collect his debt and to establish his malicious purpose, the inferences from the facts proven were peculiarly within the province of the jury, and ought not to have been disposed of as matter of law.

The defendant endeavored to prove what occurred between the magistrate and himself at the time the information was sworn to, and the evidence was excluded. We think this was error. (Parr v. Loder, 97 App. Div. 218.)

In the most favorable light for the defendant it did not constitute a defense, but was competent on the question of malice.

The judgment and order shoulii be reversed and a new trial ordered."

All concurred, except McLeettaií, P. J., who dissented, and FT ash, J., not sitting.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event upon questions of law only, the facts having been examined and no error found therein. ■  