
    Arthur C. Platt, Appellant, v. Seymour W. Bonsall and Innovation Trunk Company, Respondents.
    Second Department,
    January 26, 1910.
    Malicious prosecution — probable, cause — order setting aside verdict in former action — conflict of laws — when Federal decisions not binding.
    Tile fact that a verdict for a defendant in. a former action for conversion was set aside upon the ground that the evidence established the conversion does not, as a matter of law, establish probable cause on the part of the plaintiff in that action so as to bar a subsequent action for malicious prosecution. The order setting aside the verdict is merely evidence of probable cause, which should be submitted to the jury together with the other evidence on that issue.
    The- rule laid down by the Supreme Court of the United States is to the contrary; but the decisions of that court are only binding on the courts of this State when Federal questions are involved, though the utmost respect should be given to them.
    Appeal by the plaintiff, Arthur 0. Platt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 28tli day of June,. 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the 2Tth day of May, 1909, denying the plaintiff’s motion for a new trial made upon the minutes,
    
      Robert B. Honeyman \A. Barker-Smith with him on the brief], for the appellant.
    
      H. V. Rutherford, for the respondents.
   Rich, J.:

The defendant Bonsall is the owner of practically all-of-the stock of his codefendant, the Innovation Trunk Company, of which corporation the plaintiff was at one time president and treasurer, having the management of its business. Differences arose between himself and Bonsall, whereupon he resigned his offices and relinquished the management. Thereafter Bonsall caused an action to be brought in the name of the corporation against the .plaintiff in the City Court of the city of New York for the alleged conversion of money belonging to the corporation, in which action he was arrested and committed to jail. Upon the trial of that action a. verdict was rendered in favor of the plaintiff in this action, which was set aside upon the sole ground that the evidence established the conversion alleged. An appeal was taken to the Appellate Term, which reversed the order and reinstated the verdict (Innovation Trunk Co. v. Platt, 56 Misc. Rep. 645), upon which judgment was accordingly entered. The plaintiff then brought this action to recover damages for malicious prosecution. Upon the • trial the learned justice dismissed the complaint upon the single ground that the order of the city judge-setting aside the verdict, although reversed, established probable cause and was a bar to the prosecution of an action for malicious prosecution. This 'ruling presents the only serious question requiring consideration. The respondents seem t'o sustain this ruling upon the authority of Crescent Live Stock Co. v. Butchers' Union (120 U. S. 141). In that case the . plaintiff recovered judgment in the Circuit Court, which was reversed on appeal, In an action subsequently brought by the defendant-for malicious prosecution it was held by the United States Supreme Court that the judgment of the Circuit Court in favor of the plaintiff in the original action, although reversed on appeal, was sufficient evidence of probable cause to prevent the maintenance of the action for malicious prosecution, such judgment not having been impeached as having been obtained by unfair means. It was held in People ex rel. Central Park, etc., R. R. Co. v. Willcox (194 N. Y. 383) that decisions of the Supreme Court of the United States are controlling only when Federal questions, are involved, and that while the utmost respect should be given to them, yet so far as the administration of justice in this State and the power and proceedings of its courts are concerned, they are not controlling. I am unable to find any authority in this State following the rule declared in the Federal court. In Burt v. Smith (181 N. Y. 1) Judge Yann, writing , for the court, says: “We find no case in this State where the effect of a judgment of a court of superior jurisdiction in this regard has been passed upon, although it has been held that a judgment rendered by a justice of the peace and subsequently reversed upon appeal is not conclusive, but only prima facie evidence of probable cause,” and in Schultz v. Greenwood Cemetery (190 N. Y. 276) the Court of Appeals seems not to have favored the rule' declared in the Crescent Live Stock Co. case, and to have established the rule to be that such a final judgment is prima facie evidence only of probable cause. In the case of Crescent Live Stock Co. v. Butchers’ Union (supra) a final judgment of a court of superior jurisdiction had been obtained, while here no judgment or decree is presented by the case under consideration as the basis for the application of the rule made by the trial court, and that case does not aid the respondents’ contention. The jury in the City Court action determined that Platt was "not guilty of conversion, and their verdict was in his favor after a trial upon the merits. The respondents’ contention is based upon the order of the judge which set the verdict aside and granted a new trial, upon the erroneous conclusion that'while the facts were as found by th¿ jury, nevertheless they established conversion as matter of law. It seems clear that the erroneous conclusion of a trial judge on a question of law is not and cannot be made conclusive on the merits of the controversy. The rule contended for by the respondents has no application to the facts presented by the record in the case at bar. The order of the city judge was, at the utmost, evidence only of probable cause which, with the other evidence in the case, should have been submitted to the jury for their consideration in determining the presence or absence of probable cause.

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

Hiesohbeeg, P. J., Woodward, Jenks and Thomas, JJ'., concurred.

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