
    Arthur C. Platt, Respondent, v. Seymour W. Bonsall and Innovation Trunk Company, Appellants.
    Second Department,
    February 17, 1911.
    Malicious prosecution. — probable cause — evidence — judgment roll in prior action — profits made by defendant through plaintiff’s services.
    Action for malicious prosecution. The plaintiff, president of a corporation of which the defendant was the chief stockholder, had a drawing account for his living expenses and, being called to a foreign country, obtained a letter of credit authorizing foreign bankers to honor drafts which were paid for by checks signed by him, paid from the bank account of the corporation, and charged to him on its books, such arrangement being authorized. While in the foreign country the defendant authorized the plaintiff to make certain loans, which he did, the advances being charged to him. Thereafter he collected the loans and retained the money, but his account on the books of the corporation did not specifically show that the loans had been charged to him, but merely a debit of the checks drawn which included said loans. The defendant caused the corporation to sue the plaintiff for conversion in which action a verdict was rendered for the defendant.
    
      Held, that the defendant had probable cause for instigating the action.
    The court may hold as a matter of law that a defendant sued for malicious prosecution had probable cause although the prosecution was unsuccessful.
    A plaintiff, suing the chief stockholder of a corporation for malicious prosecution in inducing the corporation to sue him for conversion, should not be permitted to introduce in evidence the judgment roll and judge’s charge in a prior action in which he recovered a large verdict against the corporation for services rendered.
    Mor should he be allowed to show that the defendant, as stockholder, drew large dividends during the plaintiff’s management of the corporation.
    Appeal by the defendants, Seymour W. Bonsall and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of Hay, 1910, upon the verdict of a jury for $13,458.71, and also from an order entered in said clerk’s office on the 7th day of Hay, 1910, denying the defendants’ motion for a new trial made upon the minutes.
    
      H. V. Rutherford, for the appellants.
    
      Robert B. Honeyman [A. Parker-Smith with him on the brief], for the respondent.
   Thomas, J.:

The plaintiff has recovered judgment for damages for malicious prosecution of an action brought by the Innovation Trunk Company at the instance of Bonsall for the alleged conversion of money by Platt. Bonsall, a manufacturer of trunks, employed Platt in 1899, and in March, 1900, transferred his business to the Innovation Trunk Company, of which he was sole owner of the stock save two qualifying shares issued to Platt and another. Platt was president, treasurer and a director, and came into entire active charge of the business, reporting to and advising with Bonsall. The parties arranged that PJatt should have a drawing account for his living expenses, the increasing amount of which was encouraged by Bonsall, and it was further agreed that Platt should be properly compensated for his services, and upon indebtedness so arising Platt recovered a judgment in the Federal court. In August, 1903, Bonsall summoned Platt to England, and the latter obtained from Brown Bros. & Co. a credit letter authorizing any foreign office to honor Platt’s drafts to the amount of $2,500. .These drafts were paid by checks signed by Platt before going to Europe, and left with the bookkeeper at the home office, and paid from the bank account of the corporation and charged on its books to Platt. This arrangement was authorized. While in London Bonsall directed Platt to draw and lend $500 to one Mumford, and also to advance money for some women who returned with Platt. Platt did as directed, and in due course the money so advanced was charged to Platt pursuant to the method above stated. During the voyage Platt collected $300 from the women and after his return collected $500 from Mumford, and kept both sums. Later Bonsall returned and caused Platt to resign and separate from the company. Bonsall by letter asked Platt for a detailed statement of liis expenses incurred on the European trip, but, as appears by the letter of his counsel, did not receive it. Platt advised Bonsall that the women had repaid him. Platt’s account on the books did not specifically show that the moneys advanced to Mumford and the women had been charged to him, but did show a debit of the checks drawn, which included the money loaned. The action for conversion was in the City Court. A verdict for Platt was set aside, but the Appellate Term restored the verdict (Innovation Trunk Co. v. Platt, 56 Misc. Rep. 645) and final judgment followed. Upon an order of arrest Platt was confined for some twenty-four hours. In the complaint Platt was charged with converting other moneys than those above stated, but upon the trial all claims seem to have been abandoned save that relating to the money repaid by Mumford. Did Bonsall have probable cause for believing that Platt had converted this money ? Platt testified: c: Q. "What is your justification then ? A. That the drafts had been charged against my account, and were on the books charged against me. I needed the money to pay whatever expenses I incurred.” He also testified: Q. Had you ever before, Mr. Platt, during your connection with the company, collected moneys to that amount which you had not turned in? A. I never had; no.” It further appears that he always drew money by the company’s check or from the petty cash, and that it was charged to him. The money loaned Mumford was at Bonsall’s risk. He or the company was the creditor for it. Although Platt obtained it for loaning from his letter of credit, and so it entered into some of the drafts paid and charged to him, that was a mere matter of bookkeeping. He was entitled to a credit against all the money paid out by him by reason of the necessary expenses of his European trip, and certainly for money loaned upon Bonsall’s direction. It follows that when he received the money from Mumford it belonged to the company, and it was his duty to turn it in to the company’s bank. He justifies upon the ground that it was charged against him. But surely he does not mean that the loan was at his risk. His conception is that when he received ,the money he could keep it for expenses, and thereby offset the charge against him on the books. With his liberal powers he had never before kept collected money, and nothing in his authorization respecting the company’s business, however arising, contemplated such an act. It was his duty to pay in the collections, have the same appear regularly on the books, and then withdraw by check and have the amount carried on the books. It is true that what he drew equals what was charged as regards Mumford’s debt. It may be that nothing1 would have been lost. But what business concern would countenance such balancing of obligations? This is not a question of an equitable accounting, but of the title to money. Bonsall knew that Mumford owed $500. He had the right to have his books show the transaction of payment and deposit of the money in the company’s bank. Instead of that, Platt collected it and kept it. That was the first and last of the matter. Ho explanation by Platt by word or ■ by writing was given. Advised by his counsel, Bonsall sued in conversion. Were the facts, real or apparent, strong enough to justify a reasonable man in the belief that he had lawful grounds for prosecuting the defendant for conversion % If so, there was a probable cause. (Burt v. Smith, 181 N. Y. 1.) Bonsall found Mumford’s debt paid and the money carried away by Platt, with no history on his books except a debit against Platt for several drafts based on the credit letter, for which Platt was entitled to a credit. In his entire service Platt had not exercised similar dominion over money. What could Bonsall in reason believe ? How could he fail to believe that Platt had taken what did not belong to him % Assume that Platt intended no wrong, that he thought that his taking the money would be equivalent to crediting himself with the like amount on the books. That would not give him title to the money. The absence of wrongful intention does not acquit him of the tort. (Industrial & General Trust v.Tod, 170 N. Y. 245.) "Moreover, the evidence does not show for what allowable expense he used the money. His attempt to account for it largely failed. I have not considered the $300 received in payment of the women’s debt. He had for Bonsall’s account loaned them a larger sum, but testified that the women had loaned him for his expenses, and the matter was adjusted. Even so, I find no authority to retain the $300. Bonsall also alleged conversion of money Platt had drawn to defray the expenses of his aunt’s funeral. His conduct in that matter may not be beyond criticism, but he did not convert the money. However, it is enough that Bonsall was justified as to the Mumford payment and the money returned by the women. The jury found that there was no conversion, but that does not preclude this court from deciding that the facts as they were presented to Bonsall, and as he believed them to be, furnished reasonable cause for bringing action for conversion, as he was advised by counsel to do. (Willard v. Holmes, Booth & Haydens, 142 N. Y. 492.) In my judgment he was amply justified in pursuing the remedy, and the motion for nonsuit should have been granted.

The judgment roll and judge’s charge in the Federal court action were received in evidence. I consider that no issuable fact determined favorably to the plaintiff in that action was relevant to any fact in issue in the present action. It is difficult to conceive that the jury would not have been influenced by a determination that Bonsall was wrong.and Platt right in a contention that Platt had been so influential in his service in building up the business as to entitle him to the large verdict rendered, based upon a contract to pay therefor alleged by one party and denied by the other. The respondent in his present argument urges that the previous judgment was relevant, and it is presumable that he made use of it upon the trial for influencing the jury. It will be observed that the plaintiff is not content to excuse the admission upon the ground that, the evidence was harmless, but insists in addition with vigor that as an adjudication it solves some issues now present. How then can he urge that it was ineffective in operating upon the minds of the jurors ? The only issue present as regards liability is whether the defendant had reasonable ground to believe that the plaintiff took and kept without authority money collected for the defendant, and unless the former judgment is competent on that issue its reception was hurtful error. I consider its admission a ground for reversal.

The court also allowed plaintiff to prove the profits, amounting to $55,000, drawn from the business by Bonsall during Platt’s connection with it. This is defended upon the ground that it illustrated the right of Platt to draw whatever he did, and that the jury might rightfully infer that Bonsall, who realized such profit out of another’s labors, and then hastened to put such other person in jail on an unwarranted suspicion that he had embezzled a few hundreds, was of a mean and malicious character.” It is evident that the evidence tended and was used to influence the passion of the jury, and that it did so cannot be doubted. The plaintiff had a right to draw for his expenses, and it was not expected or desired that he would be self-denying in his way of living. But the profits were not his own, and he was not permitted to adjust his scale of living to profits belonging to his employer. He could draw up to a limit, and that limit was what he needed for his support, and Bonsall encouraged liberality in his expenditures. I regard the evidence as incompetent and harmful.

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

Jenks, P. J., Bhrr, Carr and Rich, JJ., concurred.

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