
    Robert R. Freer, Appellant, v. Louis Schmitt, Respondent.
    First Department,.
    December 14, 1906.
    Malicious prosecution—facts showing probable .cause.
    In an action for malicious prosecution the question of probable cause is for the court when, the facts are not disputed. Probable cause does not-depend upon plaintiff’s guilt, but Whether defendant had probable caüse) to believe him-guilty. 1 .
    The plaintiff was employed by the defendant as cashier, office manager and bookkeeper. As such, it was his duty to advance cash to Various foremen for disbursement by them and to enter on the hooks reports made by such foremen as' to the amounts of tlieif disbursements and the balance on hand. It was admitted by the plaintiff -that he had entered on the books the report of a foreman showing that he had expended §100.08, charging the sanie as a dishurse- '■ ment. The following week, on receiving a report from the Same foreman claiming the amount due for the disbursements for the preceding week which had not been paid, the plaintiff entered the whole amount as another expense of the company, thus charging it with the sum of §100:08 twice as-cash disbursed-.. It-was conceded by.the plaintiff that the foreman had not received this sum 'twice, yet-the plaintiff on leaving his employment had balanced his-books containing this error and turned over to the defendant only the balance shown by .the hooks. With knowledge of these facts the defendant, charged-the plaintiff • before a magistrate with the crime of grand-larceny.
    
      Held, that the defendant acted with probable cause in making the.charge and that a dismissal of the complaint was proper.
    ■ Appeal by the plaintiff, Robert R. Freer, from a judgment of the Supreme Court in favor of the defendant, entered- in the? office of the clerk of the. county of New Y ark on the 11th .day of December, 1905, upon the dismissal of the complaint by direction of the court after a trial.at the New Yóik -Trial Term, and also from -an Order entered in said clerk’s office on the 2d! day of January, 190.6,. denying the plaintiff’s motion for a mew trial made ■ upon the minutes. ‘ '
    
    
      Franklin Pierce, for the appellant.
    
      Robert Thorne, for the-respondent.
   Ingraham, J.:

The action was for malicious prosecution. The defendant at the end-of the plaintiff’s case moved to . dismiss the complaint,, which. motion was granted upon the ground that the plaintiff had failed to prove a lack of probable cause, and from the judgment entered upon that dismissal the plaintiff appeals. The complaint alleged —■ and the answer admitted — that the defendant charged the plaintiff before a magistrate of the city of New York with the crime of grand larceny. As appears from the testinoony of the plaintiff, the facts within the knowledge of the defendant, upon which this charge was made, were as follows: The plaintiff first entered the employ of the Schmitt Brothers, of which the defendant was a partner, on June 3, 1898, and remained in their employ until April 1, 1900. Schmitt Brothers and the Tiffany Glass and Decorating Company were then consolidated under the name of the Allied Arts Company. The plaintiff was not at first employed by the new company, but on December 15, 1900, at- the request of the defendant who was the treasurer of the Allied Arts Company, he went into its employ as bookkeeper. At that time one Alexander was cashier. Plaintiff continued in this position until September, 1901, when the cashier left and the plaintiff was given charge of the office as cashier and office manager, continuing to keep the books. After Alexander left it was discovered that the books were out of balance, and the plaintiff then made a request of the defendant for a new set of books. Plaintiff testified that defendant said that he had engaged an accountant to go over the books; that he knew that they were irregular, but he did not care to incur the expense of a new set of books; but subsequently admitted, on cross-examination, that in" December he made a design for new books which. were ordered on December li, 1901, and those new books were used after the 1st of January, 1902. The plaintiff continued in the employ of the Allied Arts Company .until May 17, 1902, when he left its employ. During this period, from September, 190-1, to May, 1902, the plaintiff, as cashier of the Allied Arts Company, had charge of the cash belonging to the company; made the necessary cash disbursements in carrying on its business and kept the books showing these disbursements. The company employed various foremen to superintend the work that it was doing, and it advanced money to the foreman to be used in paying the necessary expenses, these advances being - made by the plaintiff as cashier, and the charges to be made were entered in the books of the company by the plaintiff. The various foremen to whom these advances were made would at the end of each week return slips to the plaintiff showing the amount of money that each foreman had received and the disbursements that he had made on behalf of the company, and showing what amount, if any, of the company’s money he had in his possession at the time of making the report, or in case his disbursements had been in excess of his receipts, showing the amount that there was due to him from the company. On March 6, 1902, one Donohue, one of the company’s foremen, submitted to the plaintiff a slip showing that "at the commencement of that week there was cash due to Donohue $41.51, and that during that week he had expended $100.08, making a total amount due to Donohue qf $141159, which had been marked O. If. by defendant to show that the various disbursements made by the foreman were a proper charge against the company. Plaintiff entered this amount in the cash book'as a disbursement. In the week ending "March 13/1902, Donohue presented to the company another slip which showed two sums of cash received during that week, one, March seventh, $100, .and March thirteenth, $150, making a total of $250. Under the head of expenses there was stated, “Cash due me,"$141.59,” being the amount due to him from the previous week, as shown -from the previous slip"' submitted on March 6, 1902, and various disbursements made during that week aggregating $245.57, leaving a balance on hand of $4.43. This was also O. If. by the defendant and received by the plaintiff, who on March thirteenth entered in the cash book as expenses incurred by Donohue during the -week ending March thirteenth the sum of $245.57, thus charging the company with the sum of $100.08 twice as cash disbursed by Donohue for account of the company. It was conceded that Donohue did not receive this sum of $100.08 twice, and thus to make the cash book balance it would appear that some one other than Donohue must have received from the cash in the plaintiff’s charge this sum of $100.08. The plaintiff admits that he was primarily responsible for all cash payments made in the office to Donohue and to the other foremen. The-entry of-this amount in the book of the company was not discovered at the time the plaintiff left the company on May 17,1902. At that time he went over his accounts and counted up the cash'in his possession, made out a statement and submitted that statement to one Thomas, who apparently succeeded him as cashier. Thomas counted the cash and signed a paper stating that the amount was correct. According to this paper it appeared that the plaintiff had a certain amount of cash on hand in the office and that his books called for the same amount of cash, and he then turned over the books, the keys and the cash to Thomas, squaring the whole matter between the plaintiff and the company at that time as shown by the books and the cash in the drawer, and yet at that time (March seventeenth) the cash book contained these duplicate entries. This statement was admitted in evidence. It ' contained a footing on the debit side of the cash book of $75,885.93, on the credit side of the cash book of $60,353.21; bank balance, $13,282.94; petty cash on hand, $346.87, which was turned over by the plaintiff to Thomas, the balance being money in the"hands of workmen and salesmen on the road, and other small items which made the balance correct.

It would appear that without this duplicate charge the cash book should have shown "an additional sum on hand of $100.08 and that amount should have been in the petty cash in the office which was1 in the possession of the plaintiff. These facts were admitted by the plaintiff upon his examination and cross-examination. He offers no explanation as to this condition or as to what had become of this sum of $100.08. It also appeared from the plaintiff’s examination that in the fall of 1901 there was a question raised about a sum of money which had been received by the plaintiff in connection with the purchases by a Dr. Morgan. There was produced a slip in the plaintiff’s handwriting, dated October 3, 1901, with an entry in pencil:

(This meant that certain articles had been purchased in the store by Dr. Morgan and then had come to the plaintiff in payment of such purchase a check for $36 and cash $21.50. A month or more after this a bill was rendered to Dr. Morgan for this amount which was returned by him with a statement that he had paid it, and when this was 'shown to the plaintiff by Schmitt he admitted that he had received the $21 in cash and there was no entry, of the $21 in the cash book; that when Schmitt asked the plaintiff about it, the plaintiff said that somebody must have come' and taken it off his desk; that he did not know anything about it; that the money had been placed on the plaintiff’s desk and the check had been placed in the safe and the money had disappeared; that Schmitt then told the plaintiff that the cbmpany could better afford to lose it than he, and nothing more was said about it. The plaintiff testified that he had the sole responsibility for the cash drawer so that it was distinctly incumbent upon him as bookkeeper, and cashier to account for the moneys ; that his cash book started with a balance on the 1st of January, 1902; that he actually had that money,- and when he turned over the cash to the company on May 17,1902, when he left their employ, it would appear that his cash was-short at least this $100.08. These facts were known to the defendant at the time that lie made the charge against the plaintiff of taking this sum of $100.08, and these facts are to-day undisputed by the plaintiff, and he offers no explanation of how, from the first of January, when he commenced the new cash book which showed a sum of cash on hand, that cash could have been decreased by this sum of $100.08. The question presented to the trial court was whether upon these facts known to the defendant he had probable cause to charge the plaintiff with having taken that sum of.$100.08 from the cash of the company which was in the possession of the plaintiff. _ As the plaintiff was the only witness examined, and these facts appeared by his testimony, the question of whether or not the defendant had probable cause to charge the plaintiff with the crime with which he was charged was a question of law for the court. There was nothing to submit to the jury, as there was no disputed fact; the plaintiff’s statement being taken as proved. The principle that whether the plaintiff has succeeded in establishing a want of probable cause" as a question of law, is firmly established. In Rawson v. Leggett (184 N. Y. 504) the Court of Appeals, in holding that the plaintiff had failed to prove a lack of probable cause, said; The question is not whether plaintiff’s evidence now given that he did not commit the crimes charged to him is true. The propriety of defendant’s conduct in causing him to be indicted is to be decided by the facts. as they appeared to be at the time the prosecution was instituted, and the question is whether these facts as they then appeared were such that a discreet and prudent person would have been led to the belief that the accused had committed the crime with which he was charged. If defendants had knowledge of facts actual or apparent strong enoúgh to justify a reasonable man in the belief that they had lawful grounds for prosecuting the plaintiff in the manner complained of, then probable cause was present’ and this action will not lie. * * * Public policy -requires that all persons should feel secure in the right to resort to courts for the apprehension and punishment of crimes, and this policy must be preserved and encouraged even though it result in occasional hardship to the individual, provided only that the prosecution has been free from malice and has been warranted by such facts, actual and apparent, as would lead a person of reasonable care and prudence to undertake it. It is also veil settled that where the facts are undisputed, the question of the existence of probable cause is one of law for the court rather than of fact for the jury.” In Burt v. Smith (181 N. Y. 1, 6) it is said: “Probable cause does not necessarily depend upon the actual guilt of the person prosecuted, but may rest upon the prosecutor’s belief in his guilt when based on reasonable grounds. One may act upon what appears to be true, even if it turns out to be false, provided he believes it to be true and the appearances are sufficient to justify the belief as reasonable. * * * If probable cause exists, it is an absolute protection against an action-for malicious prosecution, even when express malice is proved.” On undisputed facts probable cause is a question of law. (Willard v. Holmes, Booth & Haydens, 142 N. Y. 497.) . Applying this rule, it seems to me that-not only did the plaintiff fail to prove a want of probable cause, but the facts disclosed showed that there was probable cause to believe that this plaintiff had abstracted this $100.08 from the cash in his hands arid that the defendant was justified in making that charge. The plaintiff had the cash and was responsible for it. He kept the books and was responsible for them and their correctness. If this duplicated charge had not been made, his cash would have shown $100.08 more than it did show and he would have had that amount on hand. He balanced the books when he left the employ of the defendant and turned over the amount that appeared by the cash book as the amount of cash for which lie'was responsible. - The irregularity in. the books ■ prior to the time that the plaintiff took charge of them is no explanation, as he testifies that when he commenced the cash book on the first of January he had on hand the cash therein shown. Upon these conceded facts, we tliink the court below was clearly right in holding that the defendant 'had probable cause to charge thq plaintiff with abstracting this amount, and for that reason the complaint was properly dismissed.

The judgment and order appealed from should be affirmed, with costs.

Patterson, McLaughlin, Houghton and Scott, JJ., concurred.

Judgment and order affirmed, with costs. Order filed.  