
    Patrick Mohar, Resp’t, v. David H. Simmons, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September, 1886.)
    
    Malicious prosecution.
    Where in an action for malicious prosecution the evidence shows a state of facts which led the defendant to believe (though mistakenly) the guilt of the plaintiff, and not such a one as to render him chargeable with reaching an erroneous conclusion because of a failure to exercise ordinary prudence and discretion, a verdict rendered m favor of the plaintiff on the ground that there was not sufficient evidence to show probable cause, should be set aside.
    
      
      L. R. Beckley, for resp’t; King & Rhodes, for app’lt.
   Landon, J.

We think the trial court should have granted the motion to set aside the verdict of the jury upon the ground that the evidence was insufficient to show the want of probable cause.

Our examination leads to the conclusion that the defendant in instituting the prosecution of the plaintiff for perjury, acted upon such a state of apparent facts as did lead him (mistakenly no doubt) to believe that the plaintiff was guilty, and we are not able to see that the defendant is chargeable with reaching an erroneous conclusion because of a failure to exercise ordinary prudence and discretion. The verdict seems to be contrary to the evidence, and in the interest of justice we exercise our discretion and set it aside and reverse the judgment entered upon it. We do not say that the verdict is wholly unsupported by any evidence, or that the trial judge should have directed a verdict or non-suit. No doubt the case was one for the jury to pass upon, and- by granting a new trial we do not hold otherwise, but we think justice miscarried and that a new trial should be granted.

Judgment and order reversed, new trial granted, costs to abide the event.

Bockes, P. J. concurs; Parker, J. dissents.  