
    Charles P. Sweet, Appellant, v. Dexter A. Smith, Respondent.
    
      Malicious prosecution — cutting limbs from a tree in violation of a city ordinance — circumstances requiring the submission of the question of probable cause to the jury'. ,
    In an action brought to recover damages for- malicious prosecution it appeared that the plaintiff, who was a tenant of the defendant’s mother-in-law and resided in the same house with her, cut certain limbs from a tree in front of the house, and that some days thereafter the defendant caused the plaintiff’s arrest upon the charge of violating a city ordinance by willfully mutilating the tree, but that being unable, as he claimed, to procure the necessary witnesses to. support the prosecution, it was abandoned and the plaintiff was discharged.
    The defendant testified that, before causing the arrest, he had been told by liismother-in-law that she had not authorized the cutting of the limbs, but it did not appear that he had made any attempt to learn the facts from the plaintiff,
    ,. although the latter was accessible; while the evidence on behalf of the plaintiff tended to show that the defendant’s mother-in-law had authorized the cutting of the limbs, and that, after the plaintiff’s arrest, the defendant stated in substance that he caused it for the purpose of securing the plaintiff’s removal from the house, and that if the plaintiff would remove he would drop the. proceedings.
    
      Held, that-, under the circumstances, the question whether the defendant had probable cause for the prosecution should have been submitted to the jury,, and that it was error for the court to direct a verdict for the defendant.
    Appeal by the plaintiff, Charles P. Sweet, from a judgment of the Supreme Court in favor of: the defendant, entered in the office. of the clerk of the county of Cayuga on the 25th day of May, 1896, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th day of May, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      F. D. Wright, for the appellant.
    
      Frederic E. Storke, for. the respondent.
   McLennan, J.:

The action was commenced on the 1st day of February, 1894, to recover damages which the plaintiff claims to have sustained by reason of his malicious and wrongful prosecution, arrest and imprisonment by the defendant.

The important question upon this appeal is whether, upon the whole evidence, it can be said as a matter of law that the defendant had probable cause for causing the arrest of the plaintiff.

On the 6th day of September, 1893, and for some time prior thereto, the plaintiff resided in the city of Auburn, 3ST. Y., with his family, and occupied a part of premises known as Ho. 56 Clark street, in said city, as the tenant of one Pauline Chase, the mother-in-law of the defendant, the defendant having, on April 17, 1893, as the agent of said Pauline Chase, leased the premises to the plaintiff for the term of one year from May 1, 1893. The building was two stories. Mrs. Chase lived in the lower east half, and tlie plaintiff occupied the east half of the upper or second floor. The building was on the south side of Clark street, which extends 'east and west in the city of Auburn. The business of the plaintiff was that of a finisher of photographs, by enlarging and painting them.

The evidence of the plaintiff is to the effect that Mrs. Chase, the owner of the house occupied by the plaintiff, desired the plaintiff to enlarge a photograph for her; that the plaintiff stated to her that he could not do the work; because of the fact that the branches of a tree upon the street opposite the apartments occupied by him obstructed his light; that as a result of several conversations upon that subject, Mrs. Chase directed or gave permission to the plaintifF to. remove certain limbs from such tree; that on- the 19th day of August, 1893, the plaintiff removed such limbs while Mrs. Chase-was at home and in tire house, arid with her permission and pursuant-to her directions. The tree, although upon the street, was tile property of Mrs. Chase.

The wife of the plaintiff also testifies that in her presence Mrs.. Chase told the plaintiff to take the limbs off the tree. She testifies-that this' was said in substance by Mrs. Chase to the plaintiff upon several occasions.

About five o’clock p. m. of September 6, 1893, the defendant caused the plaintiff’s arrest on a warrant issued by the recorder of the city of Auburn, charging him with having violated section 13 of the ordinances of the city, which is as follows :

§ 13. Ho person shall willfully injure, mark, damage or molest any building, bridge, culvert or other structure, whether public or private, or any of the fences, fixtures or appurtenances thereof, nor any wall, fence, railing, tree, tree box, vine, shrub or plant, or any other public or private property. Any person who shall violate any of the provisions of this ordinance shall, upon conviction thereof, be fined not less than two nor more than one hundred dollars, or be imprisoned not exceeding three months in the common jail of the county of Cayuga.”

After such arrest, the plaintiff was immediately taken into custody and locked up in a cell in the station house. He was detained there for some hours, when he sent word to his wife, who went to the house, of the- defendant and induced the defendant to bail the plaintiff, upon condition that the plaintiff would appear at the police office on the following morning. A partial examination was held from time to time before the police justice* and the defendant in the present action, claiming to be unable to procure the necessary wit-. nesses to establish the offense charged against the plaintiff in such action, abandoned the prosecution, the plaintiff was discharged and the prosecution was terminated favorably to the plaintiff before the commencement of this action.

The evidence on the part of the plaintiff is to the effect that the tree was properly trimmed by him, and not in such manner as to constitute a violation of the ordinance. The evidence given on the part of the defendant is to the effect that the limbs of the tree were taken off in such manner as to disfigure the tree, and so as to constitute ail offense under the section of. the ordinance above referred to. The evidence on the part of the defendant is also to the effect that, before he caused the arrest of the plaintiff, he had several conversations with his mother-in-law, Mrs. Chase, in which she stated' to him that she had not authorized the plaintiff to cut the limbs of the tree in question; that it was done without her knowledge and •consent; that he examined the tree and discovered that it had been mutilated, and that, relying upon such observation made by him and upon the statements of his mother-im-law, he caused the arrest of the plaintiff.

The plaintiff did not produce evidence to contradict the statement of the defendant that Mrs. Chase had informed him that the plaintiff had cut the tree without her consent, and it is urged that such, evidence being uncontradicted, as á matter of law it established probable cause for the action of the defendant in procuring the arrest of the plaintiff.

Between the time the tree was cut" and the arrest, a period of seventeen days, the plaintiff lived with his family in the same house with Mrs. Chase, attending ;to his ordinary business, and accessible to the defendant, but withoiit any attempt to learn the facts from him, the defendant claiming to have relied upon the statements of his mother-in-law and of others of whom he took advice, procured the plaintiff’s arrest, and it is now urged that such statements and advice establish, as a ¡matter of law, probable cause.

We think, even upon the facts above stated,- that it was a question for .the jury whether the defendant had probable cause for procuring the plaintiff to be arrested and imprisoned; but, in addition, the evidence of the plaintiff and of his wife is to the effect that, immediately after the plaintiff was arrested, the defendant stated in substance that he cared nothing about the tree, but that he wanted the plaintiff and his family to remove from the house which they had rented from his mother-in-law, and that, in substance, he had procured the plaintiff’s arrest to accomplish that end, and that if the plaintiff would remove from the premises he, the defendant, would drop the proceedings against him. The defendant also stated that the women (meaning his mother-in-law and other relatives) were hounding him to get possession of the house, and he urged the plaintiff to move out.

It will be observed that the only fact known to the defendant personally was the fact that the tree had been trimmed in -an improper manner, according to his testimony ; in a proper manner, ¡according to the testimony of the plaintiff; The defendant states in addition that the owner of the tree informed him that it had been trimmed by the plaintiff, and that it was trimmed by the plaintiff without her consent. He sought no explanation from the plain-, tiff; did not seek to ascertain his reasons or. motive for trimming-the tree, although, as before said, the plaintiff for nearly a month, was where he could have been seen and interviewed by the;., defendant.

We think that the defendant was bound to obtain such facts and. information as he could obtain by reasonable diligence, which would enable him to determine whether or not the plaintiff was probably guilty of the offense charged. The fact that the defendant acted upon hearsay evidence in causing the plaintiff’s arrest, if such evk deuce could easily be tested and the truth ascertained, is one element, though not a conclusive one, in determining the question of prob-. able cause.

Under the circumstances' disclosed by the evidence in this case, considering the relations the parties sustained to each other, the nature of the offense charged, and the ease with which the truth of-Mrs. Chase’s statements might be ascertained, the question of probable cause should have been submitted to the jury.

It follows that the judgment and order appealed from should be. reversed and a new trial ordered, with costs to the appellant to abide, the event.

All concurred.

Judgment and order reversed and a new trial ordered, with costs, to the appellant to abide the event.  