
    Joseph Bregman, Respondent, v. August Kress and George Carragan, Doing Business under the Name of August Kress & Company, Appellants.
    
      Malicious prosecution — allegation of want of probable cause.
    
    An allegation contained in the complaint in an action for malicious prosecution averring that the defendant, before a magistrate, “ falsely and maliciously and without just cause or provocation charged the plaintiff,” etc., is, as against a demurrer, a good plea that the prosecution was begun without probable cause.
    Appeal by the defendants, August Kress and another, doing business under the name of August Kress & Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of December, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendants’ demurrer to the second cause of action in the plaintiff’s amended complaint.
    
      Moses Feltenslein, for the appellants.
    
      Thomas Kelby and Jamies W. Ridgway, for the respondent.
   Jenks, J.:

The sole question is whether, upon demurrer to a complaint for malicious prosecution, the allegation that defendant, before a magistrate, “ falsely and maliciously and without just cause or provocation charged the plaintiff,” etc., is a good plea that the prosecution was begun without probable cause. Against the demurrer the pleading will be deemed to allege whatever can be fairly and reasonably implied. (Kain v. Larkin, 141 N. Y. 144; Greeff v. Equitable Life Assurance Soc., 160 id. 29.) In Coatsworth v. Lehigh Valley R. Co. (156 N. Y. 451, 457), the court, per Martin, J., say : “ Under the more recent authorities, pleadings are not to be construed strictly against the pleader, but averments which sufficiently point out the nature of the pleader’s claims are sufficient, if under them he would be entitled to give the necessary evidence to establish his cause of action. (Rochester R’way Co. v. Robinson, 133 N. Y. 242, 246.)”

The word “ just ” is derived from the Latin “Justus,” which is from the Latin “jus,” which means a right, and, more technically, a legal right, a law. Thus “jus dicere ” was to pronounce the judgment, to give the legal decision, as by the praator. Our word “ just ” is defined in the Century Dictionary as “ right in law or ethics; ” in Stormonth’s English Dictionary as “ conformable to laws; ” in the Imperial Dictionary as “ conformed to rules or principles of justice.” “ Just ” is defined in the Standard Dictionary as “ conforming to the requirements of right or of positive law ; ” in Anderson’s Law Dictionary as “ Probable ; reasonable; as, just cause to make an arrest, to suspect one of crime.” Rapalje and Lawrence’s Law Dictionary states that the terms “just cause” and “reasonable cause” are synonymous. Kinney’s Law Dictionary & Glossary defines “ just” as “ fair; ” “ adequate; ” “ reasonable; ” “ probable,” and “justa causa,” in the civil law, as “a just cause;” “a lawful ground.” Black’s Law Dictionary defines “just” as “right; in accordance with law and justice.” In Jones v. Fruin (26 Neb. 76) the court held that the allegation that the attachment was “ wrongfully and maliciously sued out, and no just ground existed for issuing the same,” as equivalent to allegations of want of probable cause. In Martin v. Gage (9 N. Y. 398) the court held that the phrase “ just debts ” means “ those debts which shall turn out to be just, according to the determination of courts of -law and equity.”

The pleader charges that the defendant prosecuted him without just cause or provocation. Does he not fairly mean that the defendant had no legal justification for his act? A just cause for an act is such a cause as the law recognizes as legal warrant for the act, absolving the offender from any legal consequences, and that in malicious prosecution is probable cause.” The pleader is not pleading that which he must prove, namely, want of probable cause, and so the question is not to be determined by deciding whether proof of no just cause is the same as proof of no probable cause; he is pleading that the defendant acted without such cause as the law recognizes as just, in the sense that it was not excusable in law. To have no just cause ” in such a case is to have no such cause as the law recognizes, namely, a probable cause. And the pleading may be regarded as “ the statement of a fact ascertained by the rules of law.” (See remarks of Landon, J., in Thayer v. Gile, 42 Hun, 268.)

I think that the averment sufficiently points out the nature of the claim, and that evidence of no probable cause is admissible under it. The two decisions mainly relied upon by the learned counsel for the appellant, namely, Young v. Gregorie (3 Call [Va.], 446) and Van de Wiele v. Callanan (7 Daly, 386), need not be followed. The first is nice to a degree in the lines of antique pleading, when the courts indulged in subtleties, for the divided decision turned upon the fact that justifiable cause ” could mean something else than “ probable cause.” The second decision is obiter upon this point. It holds that as just or proper cause does not necessarily express the same thing as probable cause, it could not be substituted for it. I think that the rule expounded is too stringent in the light of the more recent decisions on the construction of pleadings upon demurrer, ut supra. The learned Special Term (Dickey, J., presiding) was right in overruling the demurrer, and the judgment should be affirmed.

Bartlett, Woodward, Hirsohberg and Hooker, JJ., concurred.

Interlocutory judgment affirmed, with costs.  