
    H. Leslie Skinner, Plaintiff, v. Asano Bussan Company, Defendant.
    Supreme Court, New York County,
    October 5, 1926.
    Malicious prosecution — arrest — action based on order granted by Supreme Court subsequently reversed — no cause of action stated.
    The plaintiff has no cause of action for malicious prosecution and false arrest, since it appears that the basis of the action is an order of arrest granted by the Supreme Court which was subsequently vacated on appeal. In order to succeed, it was necessary for the plaintiff to show that the order of arrest was procured as a result of fraud, malice or oppression.
    Action for damages for malicious prosecution and false arrest.
    The facts proved at the trial showed that the plaintiff had been arrested pursuant to an order of the court, made on the application of, and upon affidavits submitted by, the defendant in a suit in the Supreme Court, New York county, in which the plaintiff hoi,e was defendant and the defendant here was plaintiff; that un Skinner’s motion at Special Term, Part I, to vacate the arrest, this motion was granted but on reargument denied and the validity of the arrest sustained; that on appeal by Skinner to the Appellate Division, the order for the arrest was vacated (Bussan Co. v. Skinner, 207 App. Div. 609)
    Thereafter, this action came on for trial before Mr. Justice Phoenix Ingraham and a jury at Trial Term, Part XVII, of the Supreme Court, New York county, October 5, 1926. At the close of the plaintiff’s case a motion was made in behalf of the defendant to dismiss the cause of action for damages for false arrest and another motion was made to dismiss the complaint.
    
      James H. Hickey, for the plaintiff.
    
      Reese D. Alsop, for the defendant.
   Ingraham, J.

The order of arrest issued out of this court by a judge having jurisdiction, although erroneous and subsequently vacated, protects the defendant who procured it. Even the showing of malicious motives and the want of probable cause will not support an action for false arrest. (Marks v. Townsend, 97 N. Y. 590.) The second cause of action is accordingly dismissed.

The issuance of the order of arrest by a court having jurisdiction of the parties and the subject-matter is sufficient evidence of probable cause although this court was afterwards reversed by a higher court. In order to succeed the plaintiff was required to show that the order of arrest was procured as the result of fraud, malice or oppression. (Beall v. Dadirrian, 62 Misc. 125; Crescent City Live Stock Co. v. Butchers’ Union, etc., 120 U. S. 141.)

This he has failed to do.

Complaint is accordingly dismissed.  