
    William Giesener, Respondent, v. Timothy Healy, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Libel—criminal — circulation of libelous matter concerning defendant — when want of probable cause.
    Where defendant did not lodge a complaint against plaintiff for criminal libel until after a thorough and careful investigation of certain reports that had been made to defendant, as international president of an organization of which both were members, by a large number of members of the local union, that plaintiff was circulating libelous matter concerning defendant and another officer, and not until defendant had been advised by competent counsel that it was his duty to prosecute plaintiff, it cannot be held in an action for malicious prosecution and false imprisonment that there was such want of probable cause as was essential to the maintenance of the action.
    That plaintiff was held on the criminal charge after an examination was prima fade proof of probable cause.
    Appeal by the defendant from a judgment of the City Court of the city of New York in favor of the plaintiff for $1,500 damages, besides costs, entered upon a verdict.
    Jeremiah J. Coughlan, for appellant.
    S. Earl Levene, for respondent.
   Guy, J.

This action was brought to recover damages for malicious prosecution and false imprisonment.

Defendant was the international president of the Firemen’s Union. In December, 1911, during an election in local Union No. 56, a circular was printed and signed anonymously by several members of local Union No. 56 charging defendant and another officer of the union with being grafters. The circular was grossly libelous; an investigation was ordered and from twenty to twenty-five members of the union informed defendant that plaintiff had handed them the libelous circulars. Defendant also traced plaintiff’s responsibility through the printer who printed the circulars. Upon this information defendant prosecuted plaintiff for criminal libel. Plaintiff was held by a city magistrate, but was not indicted by the grand jury.

On the trial five disinterested members of the union, Christopher Hurley, Michael Cox, John E. Kennedy, Thomas Flynn and Matthew McKinley, testified that they either received prints of the libelous circular from plaintiff or else that they saw plaintiff hand prints of it to other members of the union. This was denied by plaintiff.

The evidence shows that defendant did not make complaint against plaintiff until after he had made a thorough and careful investigation of the reports that had been made to him as president, by a large number of members of the union, that plaintiff was circulating libelous matter concerning him and another officer, and after he had sought and received the advice of competent counsel that it was his duty to prosecute. In the light of these facts, conclusively established by the weight of evidence, it cannot be held that there was want of probable cause, which is essential to the maintenance of plaintiff’s cause of action. Rawson v. Leggett, 184 N. Y. 504, 509-512; Willard v. Holmes, Booth & Haydens, 142 id. 492, 502-505; Hobson v. Koch, 115 App. Div. 299, 302, 303; Freer v. Schmitt, 116 id. 462, 467, 468; Schmidt v. Medical Soc., 142 id. 635, 638, 639; Giorgio v. Batterman, 134 id. 139, 140; Shappee v. Curtis, 142 id. 155, 158; McCarthy v. Barrett, 144 id. 727, 729-732; Davenport v. N. Y. C. & H. R. R. R. Co., 149 id. 432, 436; Galley v. Brennan, 156 id. 443, 445, 446.

The holding of plaintiff, after an examination by a city magistrate, was prima facie proof of probable cause. Schultz v. Greenwood Cemetery Assn., 190 N. Y. 276, 280, 281; Crescent Live Stock Co. v. Butchers Union, 120 U. S. 141, 149-151; Burt v. Smith, 181 N. Y. 1, 5, 6-8.

Judgment reversed, with costs, and complaint dismissed, with costs.

Bijur and Pendleton, JJ., concur.

Judgment reversed, with costs.  