
    Richard v. Boland.
    (New York Superior Court—Trial Term,
    November, 1893.)
    Defendant, a manufacturer and dealer in needles, discharged plaintiff from his employ on suspicion that he had been unlawfully selling an inferior article of needles under the defendant’s label and trade mark. Subsequently, and at defendant’s instance, he was arrested for counterfeiting trade marks, but was discharged by the magistrate although a pri-ma facie case was made against Mm. In an action for malicious prosecution, there was no dispute as to the facts and no proof of malice and want of probable cause. Held, that the complaint was properly dismissed and a motion for a new trial should be denied.
    The facts being undisputed the question of probable cause was for the court.
    The arrest being for a specific misdemeanor not involving moral turpitude the court properly excluded affirmative evidence as to plaintiff's good character.
    Motion by plaintiff for new trial on minutes after dismissal of complaint.
    
      
      Metzger & Goldey, for motion.
    
      Coudert Brothers, opposed.
   McAdam, J.

The action is for malicious prosecution under tlie following facts: The defendant, a manufacturer and dealer in patent sewing machine needles, discharged the plaintiff from his employ on suspicion that lie had been unlawfully selling an inferior article of needle under the defendant’s label and trade mark. The defendant thereafter went before á police magistrate, accompanied by three witnesses, all of whom made affidavits proving that the offen'se had been committed: The defendant’s affidavit was based largely on information received from the three witnesses who accompanied him, and their affidavits were made on personal knowledge, whereupon the magistrate issued his warrant in due form pursuant to section 364 of the Penal Code in reference to counterfeit trade marks. The papers made out a strong prima facie casé against the plaintiff. Upon being arrested he demanded an examination, which was had, and the witnesses reiterated their former assertions, notwithstanding which the magistrate discharged the plaintiff, who now sues to recover $20,000 for malicious prosecution. The plaintiff, at the trial, offered in evidence the record of the magistrate, together with all the evidence given before him, so that the same was before the court for consideration.

In addition to this, the plaintiff called Mr. Ballard, a printer (who had previously testified before the magistrate), and he reiterated his former testimony, in which, among other things, lie said that on January 13, 1886, the defendant ordered 21,500 labels, for which he paid nine dollars and twenty-five cents, and that they were in separate slips ; that on March 10, 1887, the plaintiff ordered 20,000 similar labels in slips of ten each, for which he paid eight dollars and fifty cents. This last lot was ordered without the authority of the defendant, and constituted the fraudulent labels the plaintiff was charged with using. This testimony, with evidence proving the unauthorized use, made out a prima facie case against the plaintiff sufficiently strong to have authorized the magistrate to hold the plaintiff for trial, and ample to furnish probable cause for his arrest.

However innocent the plaintiff may have been, it was enough for the defendant to show that he had reasonable ground for believing him guilty of the offense at the time the charge was made. Newell Malic. Pros. 265; Hazzard v. Flury, 120 N. Y. 227; Wass v. Stephens, 128 id. 128 ; Mohar v. Simmons, 3 N. Y. St. Repr. 293. To hold the defendant liable, both malice and want of probable cause must concur, and the want of probable cause cannot be inferred from any degree of express malice. Newell Malic. Pros. 265.

The burden was upon the plaintiff to prove both of these essentials to liability. Anderson v. How, 116 N. Y. 336; Thaule v. Krekeler, 81 id. 428 ; Fagnan v. Knox, 66 id. 525 ; Kingsbury v. Garden, 45 N. Y. Super. Ct. 224, 232 ; Richardson v. Virtue, 2 Hun, 208.

The plaintiff signally failed to make out his cause of action, and there being no substantial dispute as to the facts, the question of probable cause was one for the court, and it would have been error to have sent the case to the jury. Farrell v. Friedlander, 63 Hun, 254; 43 N. Y. St. Repr. 445 ; 18 N. Y. Supp. 215 ; Anderson v. How, 116 N. Y. 336 ; Hazzard v. Flury, 120 id. 223; Thaule v. Krekeler, 81 id. 428. See, also, Willard v. Holmes, 2 Misc. Rep. 303, where the subject is fully discussed.

The plaintiff’s counsel claimed that the court erred in refusing to receive affirmative evidence of the plaintiff’s good character in aid of the legal presumption already in his favor, and cited Newell on Malicious Prosecution, 465, 466, to sustain his contention. That work certainly favors the proposition stated, on the authority of McIntire v. Levering, 148 Mass. 546, where such evidence was admitted. That was a case in which the plaintiff, had been charged with larceny, and the court held the evidence material in the first instance on the question of probable cause. The ruling is opposed to the practice laid down by Greenleaf, vol. 1, § 55, citing Gregory v. Thomas, 2 Bibb. 286, and whether admissible or not in a case where the original arrest was for felony, it was clearly not competent in an action like this, where the arrest was for a' specific misdemeanor not involving moral turpitude. The purpose of such evidence in criminal cases is to. establish a. reasonable doubt as to the guilt of the prisoner. Remsen v. People, 43 N. Y. 6. In the present instance it was material, if at all, to prove him innocent of selling packages of needles with the defendant’s labels affixed thereto, a conclusion not warranted by the character of the proof. The evidence offered could have had no effect whatever upon the result. No error was committed in excluding evidence as to general character which no one had impeached, or in dismissing the complaint for failure of proof in the respects stated, and the motion for a new trial must be denied.

Motion denied.  