
    Anton J. Reit, Appellant, v. Joseph Meyer, Respondent.
    First Department,
    February 20, 1914.
    Malicious prosecution — termination of criminal proceeding — dismissal of indictment on motion of plaintiff— defenses.
    Where the termination of a criminal prosecution has been procured by the party against whom the prosecution was instituted, an action for malicious prosecution will not lie. But the rule is applicable only where the prosecution has been terminated as a matter of favor, as by Ms request, and not as a matter of right, or where it has been terminated as the result of the compromise or other arrangement with the district attorney, or through fraud, on the part of the accused.
    Hence, where the trial of an indictment charging the plaintiff with grand larceny was delayed for eight months, and the district attorney, after conference with the defendant, who procured the indictment, moved to discharge the plaintiff’s bail, and admitted that he had no evidence sufficient to convict, there was a termination of the prosecution sufficient to support an action for malicious prosecution, although the indictment was quashed on motion of the plaintiff, who had insisted upon a trial.
    
      It seems, however, that the guilt of the plaintiff as charged in the indictment may be shown as a defense to his action for malicious prosecution irrespective of the termination of the criminal proceeding.
    Appeal, by the plaintiff, Anton J. Eeit, from a judgment of the Supremo Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 14th day of May, 1913, upon the dismissal of the complaint by direction of the court upon the opening and the pleadings.
    
      Joseph T. Cashman [William J. Dawley with him on the brief], for the appellant.
    
      Jay C. Guggenheimer [Adam K. Stricker with him on the brief], for the respondent.
   Laughlin, J.:

This is an action for malicious prosecution. The defendant was a member of the firm of Joseph Meyer & Co., which was engaged in the business of importing silk yam, and the plaintiff was in their employ.

The sole point presented by the appeal is whether the allegations of the complaint supplemented by the opening of counsel for plaintiff sufficiently show that prior to the commencement of this action the alleged malicious prosecution had terminated in favor of the plaintiff, within the rule requiring such termination as a- condition precedent to the maintenance of the action for malicious prosecution.

The plaintiff alleges in substance that, at the instigation of the defendant, he was charged with grand larceny in stealing goods of defendant’s firm in conjunction with one Schutzman, of the value of $100, and a warrant was procured from a magistrate upon which he was arrested and arraigned and after a hearing held to answer pending the presentation of the charge to the grand jury, and that he was indicted and arraigned on the indictment before the Court of General Sessions on the 10th day of March, 1911, and pleaded not guilty. The plaintiff further alleges that he “ was then, and ever since has been, ready and anxious to stand trial of said indictment, but the District Attorney acting in and for the County of New York, after consulting defendant and in compliance with his request against the will and protest of plaintiff, did, on or about the 13th day of November, 1911, move the said Court of General Sessions of the County of New York'that the bail in this case which plaintiff had given for his appearance at the trial, be discharged and the same was duly endorsed upon the said indictment against plaintiff; ” and that thereafter he “was ready and anxious to stand the trial on said indictment but because of the failure of the District Attorney of the County of New York to bring him to trial, he moved the Court of General Sessions on the 27th day of November, 1911, to dismiss the indictment against the plaintiff, and the same was dismissed on said day by Otto A. Rosalsky, Judge of the Court of the General Sessions of the County of New York, without opposition from the District Attorney and the dismissal of said indictment was allowed and entered on record in said court. ” It is then alleged that the indictment, complaint and prosecution, and each of them, “is wholly ended and determined in favor of plaintiff in the manner set forth in the complaint as herein quoted.

Counsel for the plaintiff, in his opening, stated as bearing on the termination of the prosecution, that the plaintiff “was later indicted by the grand jury and held for trial. The case came to the point of trial, on the motion of the counsel for Reit, and when it was answered ready for trial, the District Attorney, after hearing the'testimony of Schutzman, and part of Reit’s testimony, and stated that he would move to discharge the bail, and that he would move to dismiss the indictment, as there was no case upon which tb hold Beit, the plaintiff. He then moved to discharge the bail, and on motion of the counsel for Beit, the then defendant, now the plaintiff, the indictment was quashed.” Counsel for the defendant, in moving to dismiss on the opening and for judgment in favor of the defendant on the pleadings on the ground that the complaint fails to state a cause of action, said that his point was “that it appears on the face of the complaint, and is now likewise stated by counsel in his opening statement, that the criminal prosecution was terminated by the procurement of the person accused, who is the plaintiff in this case. Your Honor will recall first the statement which my adversary made, that on motion of counsel for Beit, the court quashed the indictment, superseded by that statement that the case was moved for trial by Beit’s counsel, and after it had been moved for trial he then moved for a dismissal. Now we practically find the same thing in the complaint. I particularly call the court’s attention to that part of the complaint. My understanding of the law is that there must not only be a termination of a criminal prosecution, but there must be a favorable termination.” One statement in the opening of counsel for the plaintiff herein on the trial of the indictment would seem to indicate that after he moved the case for trial, the trial was actually entered upon and witnesses were sworn and examined. The statement of counsel for the defendant in moving to dismiss does not indicate that it was so understood. It is quite probable, therefore, that the opening remarks of counsel on that point had reference to the testimony in the return of the committing magistrate and to the reading thereof. In the view I take of the case I shall assume that the trial of the plaintiff under the indictment was not entered upon. It is not claimed, however, that in so far as the opening is broader than the allegations of the complaint the evidence would not have been admissible; and, therefore, on this appeal the complaint must be deemed supplemented by the opening of counsel for the plaintiff.

It thus appears that the plaintiff charges that he had been ready and anxious for trial at all times after the indictment was found against him for a period of more than eight months, when on the 13th day of November, 1911, the district attorney moved to discharge the bail which the plaintiff had been required- to give for his appearance for trial, and the motion was granted against his objection, and an indorsement thereof was made on the indictment; that two weeks thereafter, the district attorney having failed so to do, the plaintiff moved the indictment for trial and announced that he was ready for trial, and that thereupon the district attorney, after inquiring mto the facts, announced, in effect, that he would be obliged to move to dismiss the indictment, inasmuch as there was no case against plaintiff, and thereupon counsel for plaintiff moved that the indictment be quashed and the motion was granted.

It is well settled that where the termination of the prosecution has been procured by the party against whom the prosecution was instituted an action for malicious prosecution will not lie. (Halberstadt v. N. Y. Life Ins. Co., 125 App. Div. 830; affd., 194 N. Y. 1; Landford v. Boston & Albany R. R. Co., 144 Mass. 431; Atwood v. Beirne, 73 Hun, 547; Gallagher v. Stoddard, 47 id. 101.) That rule, however, is on principle applicable only where the prosecution has been terminated as a matter of favor as by his request, and not as a matter of right, or where it has been terminated as the result of a compromise or other arrangement with the district attorney, or through fraud, collusion or connivance on the part of the accused. In the case at bar the plaintiff charges that after the People at the instance of the defendant had indicted him and held the indictment over him for the period of more than eight months, then the district attorney after conferring with the defendant discharged the bail, but still continued to hold the indictment over him and would not move it for trial, and that he himself was obliged, in order to have the prosecution terminated, to move the court for the trial of the indictment, and when he did so and announced to the court that he was ready for trial the district attorney informed the court, in effect, that he did not have sufficient evidence to warrant him in further prosecuting the indictment and that he would be obliged to move for the dismissal thereof and that thereupon, without waiting for a motion by the prosecuting attorney, counsel for the plaintiff himself moved that the indictment be quashed and the motion was granted. The plaintiff, having been indicted, was entitled to a speedy trial. He could not have a judicial determination of the facts favorable to him unless the People saw fit to present evidence against him. The most that he could do was to insist upon a trial or on the dismissal of the indictment. (See Code Crim. Proc. § 668.) It has been held that the abandonment of a prosecution is a sufficient determination thereof to lay the foundation of an action for malicious prosecution. (Fay v. O’Neill, 36 N. Y. 11; Strehlow v. Pettit, 96 Wis. 22; Waldron v. Sperry, 53 W. Va. 116; 44 S. W. Rep. 283.) If, therefore, counsel for the plaintiff had waited and permitted the district attorney to carry out his expressed intention of moving to dismiss the indictment, it is clear that there would have been an abandonment of the prosecution. It is contended, however, that since counsel for the plaintiff submitted his rights to the court and insisted that he was entitled to a trial or to have the prosecution terminated, not as a matter of discretion or favor, but as a matter of right, the plaintiff is debarred from maintaining an action for malicious prosecution. I am of opinion that in the circumstances of this case the prosecution had terminated favorably to the plaintiff within the rule applicable to actions for malicious prosecution, and that an application to the court by a party indicted for a trial or the dismissal of the indictment as matter of right is not the procurement by him of the termination of the prosecution within the rule which precludes the maintenance of an action for malicious prosecution where the accused has procured the termination of the prosecution. (See Judge Hiscock’s opinion in Halberstadt v. N. Y. Life Ins. Co., supra, 10, 11; also Holliday v. Holliday, 123 Cal. 26; Swensgaard v. Davis, 33 Minn. 368.) It may he said that the defendant had no control over the prosecution of the indictment. That is equally true with respect to the trial of an indictment, and yet a verdict of acquittal, or the voluntary abandonment of the prosecution by the People, is, as has been seen, a termination of the prosecution favorable to the accused. If, notwithstanding the termination of the prosecution, the plaintiff was guilty of the crime, that is a defense to the action for malicious prosecution, and neither the termination of the prosecution by the acquittal of the accused, nor otherwise, is binding on the defendant. (See Schultz v. Greenwood Cemetery, 190 N. Y. 276.)

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Scott and Hotchkiss, JJ., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event. Order to be settled on notice.  