
    Brounstein v. Sahlein et al.
    
      (Supreme Court, General Term, Fourth Department.
    
    September, 1892.)
    1. Malicious Prosecution—What Constitutes—Civil Action.
    An action for malicious prosecution is maintainable for bringing a civil action in replevin and taking goods therein.
    9. Same—Probable Cause.
    After judgment for defendant in replevin, another replevin suit against the same defendant, involving the same issues, was discontinued pursuant to an agreement that it should abide the event of the first. Held, that such discontinuance was not prima faeie evidence that the discontinued suit was without probable cause.
    Appeal from circuit court, Onondaga county.
    Action by Marcus Brounstein against David A. Sahlein and others for malicious prosecution. From a judgment in favor of plaintiff for $3,000, and from an order denying a motion on the minutes for a new trial, defendants appeal. Reversed.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      W. G. Tracy, for appellants. Louis Marshall, for respondent.
   Merwin, J.

On or about December 4, 1882, the defendants in this action brought an action in replevin against the plaintiff herein to recover the possession of goods to the amount of about $1,400, which had been a short time previous purchased by Brounstein of these defendants or their assignors, Levinson & Co. The purchases by Brounstein were on time, that liad not expired, and the theory of the replevin action was that the purchases were fraudulent, so that the defendants had a right to rescind the sale, and recover the property itself. A portion of the property was taken from Brounstein by the sheriff upon the process issued. Two similar actions were previously brought by other creditors against Brounstein. One of the latter was after-wards brought to trial, and resulted in a verdict in favor of Brounstein, Thereupon the action of Sahlein against Brounstein was discontinued. Soon after that the present action was brought. The plaintiff claims that the action in replevin was brought without probable cause, and from malice, and the verdict of the jury is to that effect. At the outset, the appellants claim that an action for malicious prosecution cannot be maintained for the bringing of a civil action in replevin, and the taking of goods therein. No case in this state is cited to sustain the proposition. On the contrary, it was long ago held in Pangburn v. Bull, 1 Wend. 345, that an arrest and holding to bail are not indispensably necessary to the maintenance of an action for a malicious prosecution. In Bump v. Betts, 19 Wend. 421, it is said by Nelson, C. J., that the action lies against any person who maliciously and without probable cause prosecutes another, whereby the party prosecuted sustains an injury either in person, property, or reputation. See, also, Demfrey v. Lepp, 52 How. Pr. 11; Lawton v. Green, 64 N. Y. 331; Shafer v. Loucks, 58 Barb. 426; Whipple v. Fuller, 11 Conn. 182; Closson v. Staples, 42 Vt. 209, 14 Amer. & Eng. Enc. Law, 34. In the present case, not only was the property of the plaintiff interfered with, but his business was largely injured, and, if the plaintiff is correct upon the facts, the process of the court was improperly used by the defendants, to his great damage. We think the action is maintainable so far as the form is concerned.

It is further claimed by the appellants that the court erred to their injury in its charge as to the effect of the discontinuance of the replevin action. The appellants asked the court to charge “that the discontinuance of the replevin action brought by the defendants does not, under the circumstances of this case, constitute a want of probable cause.” To this the court replied: “I decline to charge in that form, but I do charge it, adding these words: * But is prima faeie evidence of such want.’” Exception was duly taken. The judgment of discontinuance was entered upon a stipulation signed by the attorneys of both parties, which, after reciting the commencement of the action, and the joining of issue, proceeded as follows: “And, the plaintiffs being desirous of discontinuing the same, it hereby stipulated that the defendant may, upon filing this stipulation upon said discontinuance, enter judgment against the above-named plaintiffs without further application to the court in his favor, dismissing the plaintiffs’ complaint herein upon the merits, and adjudging that the title of the property involved in this action was on the 4th day of December, 1882, and still is, in the defendant;” and the terms of the judgment, including thd damages and costs, were provided for. It appears from the record before us, without dispute, that this stipulation was made after a trial and verdict for Brounstein in one of the cases, and in pursuance of an understanding between the attorneys of the respective parties that upon the trial of one of the cases the others should abide the event. The issues involved in each were the same, so that practically the trial of one was the trial of the whole. In this view the discontinuance was not a voluntary one within the rule laid down in Burhans v. Sanford, 19 Wend. 417. An acquittal is not prima facie evidence of want of probable cause, (Scott v. Simpson, 1 Sandf. 601,) nor is a neglect to prosecute, (Gorton v. De Angelis, 6 Wend. 418.) We think it should not have been held that, under the circumstances Of this case, the discontinuance was prima facie evidence of want of probable cause. The error in that regard is of sufficient materiality to call for a new trial.

The appellants also claim that the court erred in declining to charge as they requested in regard to the effect of advice of counsel, and they refer to some cases which, as they claim, sustain their position. The rule laid down in Hazzard v. Flury, 120 N. Y. 227, 24 2 N. E. Rep. 194, seems to throw some doubt upon the correctness of appellants’ position. It is not, however, necessary here to pass upon that and some other questions that are presented, as upon a new trial a different situation may appear.

Judgment and order reversed upon the exceptions, and a new trial ordered, with costs to abide the event. All concur.  