
    Bruno Mosetti, Respondent, v. Trust Company of Fulton County et al., Appellants.
   Appeal by defendants from an order of the Supreme Court made at a Trial and Special Term at Johnstown, Fulton County, New York, denying their motion under rule 113 of the Rules of Civil Practice, for an order dismissing the complaint and directing judgment in their favor. The action is for malicious prosecution. Defendants procured plaintiff's arrest charging him with a violation of section 940 of the Penal Law in having as mortgagor secreted an automobile with intent to defraud the defendant trust company, mortgagee. Following his arrest plaintiff was arraigned in the City Court of Gloversville where, after an adjournment, the record in that court shows the following disposition, viz.: “28 Feb. 1950 defendant appeared and by Geo. W. Gloning, Jr. Trust Co. by James H. Wood; James Wood stated that defendant made restitution of automobile, Sweet willing to withdraw and consent to dismissal; Gloning, no objection — never any concealment — join in request. Complaint withdrawn, dismissed on consent of all parties.” This record is defendants’ main reliance to establish that the criminal action was terminated by an agreement of the parties and without regard to its merits. The court held that this record did not conclusively establish that the criminal prosecution had been dismissed only as a matter of compromise or as a matter of favor to the plaintiff, and that upon the affidavits of the parties issues of fact were presented for trial. Order affirmed, with $10 costs. Foster, P. J., Brewster, Bergan and Halpern, JJ., concur.  