
    DE MATTEIS v. LA MAIDA.
    (Supreme Court, General Term, First Department.
    December 15, 1893.)
    Malicious Prosecution— Question fob. Jury.
    In an action for malicious prosecution it appeared that defendant had procured plaintiff’s arrest on the charge of stealing $1,000 worth of jewelry, and afterwards substituted a charge of stealing a pair of earrings worth $30, by selling them to one S., and retaining the proceeds. Plaintiff and S. testified that the sale was on credit, and that nothing was paid to .plaintiff. S. also testified that on the day before the trial on the criminal charge defendant came to him, and endeavored to persuade him to testify that he bad paid plaintiff for the earrings. Defendant knew about the sale to S., but made no complaint that it was not satisfactory until the day plaintiff intended to sail to Europe, though defendant knew for several weeks that plaintiff intended to sail on that day. Held, that the court properly denied plaintiff’s motion to dismiss the complaint, and to direct •a verdict in favor of defendant.
    Appeal from circuit court, New York county.
    Action by Luigi de Matteis against Carlo la Maida for malicious prosecution. From á judgment entered on a verdict in favor of plaintiff for $1,475.28, defendant appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    L. L. Van Allen, for appellant.
    Herman Frank, for respondent.
   PARKER, J.

The judgment awards to the plaintiff $1,250 damages in an action for malicious prosecution and false imprisonment. 'The appellant calls our attention to two exceptions only. The first was taken to a refusal of the court to dismiss the complaint after plaintiff had rested, and the second to the court’s denial of defendant’s motion to direct a verdict in his behalf after the case was ■closed. It is not controverted that plaintiff was arrested about the 16th of September, 1891, under a warrant based on a complaint ■of the defendant, charging him with having feloniously stolen jewelry to the value of $1,000, and imprisoned for 24 hours, after which he was released on giving bail in the sum of $2,500. On the day •set for the hearing, defendant substituted for it a charge to the effect that plaintiff had feloniously stolen from the defendant a pair ■of diamond earrings. An examination upon such charge was had, resulting in the plaintiff’s acquittal. ' But defendant claimed upon the trial, and now insists, that he was entitled to a dismissal of the ■complaint at the close of plaintiff’s case, because, as he alleges, the plaintiff had failed to meet the burden resting upon him of showing want of probable cause for the action taken by, and malice on the part of, the defendant. Anderson v. How, 116 N. Y. 336, 22 N. E. 695. It then appeared without contradiction that for a period •of four years prior to the arrest plaintiff had been doing business for and with the defendant on the following basis: In the morning of each day defendant gave to plaintiff a box containing jewelry for sale, the cost price of each article being designated by defendant. Plaintiff could not sell below this cost price, but was to divide with defendant whatever he should realize above it. At the close of each day plaintiff gave to the defendant an account of the proceeds received, and returned such jewelry as remained unsold. Oash for the goods was obtained in some instances, and in others the sales were on the installment plan. Some days prior to plaintiff’s arrest he informed defendant of his intention to sail for Europe on the 16th of September, with his wife, who was then in ill health, and made application to him for steamer tickets which defendant had for sale. Defendant asked him to wait for another month, and, finding that he would not, kept postponing from day to day a settiement of the accounts between them, but did not in any way^ intimate that he was dissatisfied with the manner in which plaintiff had conducted the business. He remained the greater part of the day preceding the one upon which he was to sail with the defendant at his place of business, but nothing was said by the defendant suggesting that he regarded himself as having been wronged by the plaintiff; still, just before the hour for sailing arrived, he was arrested on the first charge, which was subsequently withdrawn, and another one substituted in its place, upon which an examination was had. This latter charge was to the effect that he had stolen a pair of diamond earrings of the value of $30. Of that charge plaintiff was acquitted, and in this action he describes the transaction which was the basis of defendant’s last charge as follows :

“I told the defendant that Frank Savetto wanted to buy a pair of earrings, and he gave me three pairs to show to him. Savetto took them to his wife, who selected one pair, returning to me the other two, which I gave to defendant, telling him that he would pay for them in fifteen days.”

Savetto testified in plaintiff’s behalf that he was acquainted with both plaintiff and defendant, and that he purchased the earrings upon a credit of 15 days. Had not paid the plaintiff anything for them. It was defendant’s contention during the criminal prosecution of the plaintiff that he had sold the earrings to Savetto, received payment therefor, and kept the money. Savetto not only disputed such contention, as did the plaintiff, but he further testified that the defendant came to his house after plaintiff’s arrest, and at a late hour of the night, and tried to persuade him to say that he had paid plaintiff for the jewelry. Upon this evidence, standing as it did at the close of plaintiff’s case, uncontradicted, it is clear that the court could not have held as matter of law that the defendant had such reasonable ground of suspicion, supported by circumstances of such strength, as to warrant a cautious man in believing that plaintiff was guilty of the offense with which he was charged. It is true that the evidence presented on the part of the defendant contradicted in substantial respects the evidence of the plaintiff and his witnesses, but that, of course, did not operate to take away the right, which we have said plaintiff had established, to go to the jury. It presented the further question for the jury to pass upon whether plaintiff’s testimony was true. If true, the situation was precisely the same as when plaintiff rested. The appellant calls our attention to what he alleges to be an error in the admission of testimony, but, as no exception was taken, we need not consider it. The judgment should be affirmed, with costs. All concur.  