
    James McMorris, Respondent, v. Harri M. Howell, Appellant.
    
      Malicious prosecution and false imprisonment — what must be prored to establish an action therefor—probable cause — malice.
    
    In an action brought to recover damages for two malicious prosecutions and one false imprisonment, it appeared that one Welstead and one Jennings each claimed title to a certain building, Jennings’, claim being based upon a tax deed;, that Welstead directed the plaintiff to make certain repairs to the interior of the building'; that, in order to gain admittance for that purpose, the plaintiff -broke a padlock which had been placed upon an unoccupied portion of the building.
    Thereupon the defendant laid an information before a justice of the peace charging the plaintiff with the crime of malicious mischief, in that he had violated subdivision 3 of section 640 of the Penal Code, which provides: “ A person who willfully * * * severs from the freehold of another * * * anything attached thereto * * * shall be deemed guilty of a misdemeanor. ’’ The plaintiff was arrested upon a warrant and was subsequently discharged by the justice.
    He returned to the building and for several days continued to make the repairs directed by his employer. Upon attempting to enter the building one day, he was met at the door by the defendant and two officers,'who refused to allow him to go inside. After some words, the plaintiff pushed against', and by; the defendant and entered the building. He- was immediately seized and handcuffed by the combined efforts of the defendant and the officers, the latter acting under the instructions of the defendant.
    The plaintiff was then taken before a justice of the peace, where he was charged upon the information of the defendant with violating section 465 of the Penal Code Which prohibits a person from using force or violence in entering upon any lands of another. The plaintiff was admitted to bail and was subsequently tried and discharged.
    The defendant was an attorney-at-law who had been engaged in active practice for fifteen years, and at the time both arrests were made he was aware that the plaintiff was in Welstead’s employ and was upon the premises by Welstead’s direction and that Jennings had instituted summary proceeedings to recover possession of the property.
    
      Held, that to sustain the action so far as it related to the malicious prosecutions, it was necessary for the plaintiff to establish that the prosecutions had been instituted by the defendant, that they had been terminated in the plaintiff’s . favor, that there was no probable cause for the prosecutions and that the defendant acted with malice;
    That a finding that both the malicious prosecutions were instituted without probable cause and with malice was justified by the evidence;
    That as, at the time that the second arrest was made, the plaintiff had not committed or attempted to commit a crime in the presence of the defendant or the officers, such arrest was unlawful and that the defendant, by directing the officers to make the arrest, rendered himself liable in an action for false imprisonment.
    'Appeal, by the defendant, Harri M. Howell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office ■of the clerk of the county of Suffolk on the 25th day of October, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of November, 1902, denying the ■defendant’s motion for a new trial made upon the minutes.
    
      Harri M. Howell [George H. Furman with him on the brief], for the appellant.
    
      I. J. Beaudrias, for the respondent.
   WoODWABD, J. :

The defendant appeals from a judgment, entered on the verdict of a jury, awarding the plaintiff damages in the sum of $500 and. costs, for two alleged malicious prosecutions and one false imprisonment by the defendant; and also from an order denying the defendant’s motion for a new trial.

In the month of March, 1901, John J. Welstead and James E. Jennings were both claiming title to a certain building at Southampton ; the former under á deed delivered to him in March, 1899, by one Read, and the latter under a tax deed from the county treasurer, dated November 14,1900. The defendant was agent for Jennings, and the plaintiff a workman employed by Welstead. Welstead directed the plaintiff to make certain repairs in the interior of the building, and in order to gain admittance for that purpose the plaintiff broke a padlock which had been placed by the defendant upon an unoccupied part of the building. Thereupon the defendant laid before a justice of the peace an information charging the plaintiff with the crime of malicious mischief. The plaintiff was arrested upon a warrant, and subsequently discharged by the justice.

He returned to the building, resumed his work and continued for several days making the repairs directed by his employer Welstead. Upon attempting to enter the building one day, he was met at the door by the defendant and two officers, a deputy sheriff and a police constable, who refused to allow him to go inside. The defendant stood in the doorway. After some words, the plaintiff pushed against and by the defendant and entered the building, where he was immediately seized and handcuffed, or secured with “ nippers,” by the combined efforts of the defendant and the officers, the officers acting under the instructions of the defendant. The plaintiff was forthwith taken before a justice of the peace, where he was charged, upon the information of the defendant, with violating section 465 of the Penal Code. He was admitted to bail and subsequently tried and discharged. The justice has no' record that a warrant was issued at any time during this proceeding.

The first malicious prosecution alleged in the complaint, in this action was instituted by the defendant upon an information charging the plaintiff with having violated subdivision 3 of section 640 of the Penal Code, which provides: “A person who willfully * * * severs from the freehold of another * * * anything attached thereto * * * shall be deemed guilty of a misdemeanor.” To sustain this action it was necessary for the plaintiff to show that the prosecution for malicious mischief was instigated by the defendant; that it had been terminated in the plaintiff’s favor; that, there was no probable cause for the prosecution, and that defendant acted from malice. (Vanderbilt v. Mathis, 5 Duer, 304; Big. Torts [7th ed.] 90.)

Probable cause has been variously defined; :ás “ reasonable cause, such as would operate on the mind of a discreet man ; * * * probable cause, such as would operate on the mind of a reasonable man. * * * There must he such a state of facts as would lead a man of ordinary caution and prudence to believe and entertain an honest and strong suspicion that the person is guilty.” (Cooley Torts [2d ed.], 209.) “Probable cause for preferring a charge of crime is shown by facts, actual or believed by him (the plaintiff) to be actual, which would create a reasonable suspicion in the mind of a reasonable man.” (Big. Torts [7th ed.] 98.) The jury had first to determine, then, whether there was probable cause for the prosecutions instituted by the defendant against the plaintiff, within the meaning of that term as here defined. In view of the fact that the record shows that the defendant was an attorney at law who had been in active practice for fifteen years; that he was at the time of both arrests fully aware that the plaintiff was in the employ of a person claiming the legal title to the property, and was on the premises by that person’s direction; and that summary proceedings had been begun by Jennings to recover possession of the property, we have no hesitation in saying that the verdict of the jury was fully sustained by the evidence in respect both to the two alleged malicious prosecutions and the false imprisonment.

The question of what constitutes probable cause,” said .Chief Judge Chuboh in Fagncm v. Knox (66 H. Y. 525, 528), does not depend upon whether the offense has been committed in fact, nor whether the accused is guilty or innocent, but upon the prosecutor’s belief, based upon reasonable grounds. (4 Cush. 288.) The prosecutor may act upon appearances, and if .the apparent facts are such that a discreet and prudent person would be led to the belief that the accused had committed a crime, he will not be hable in this action, although it may turn out that the accused was innocent. (53 N. Y. 17.) If there is an honest belief of guilt, and there exist reasonable grounds for such belief, the party will be justified. But however suspicious the appearances may be from existing circumstances, if the prosecutor has knowledge of facts which will explain the suspicious appearances and exonerate the accused from a criminal charge, he cannot justify a prosecution by putting forth the prima facie circumstances, and excluding those within his knowledge which tend to prove innocence.”

In Wass v. Stephens (128 N. Y. 123) the essential facts were singularly like those in the case at bar. In that case the defendant, who owned or had control of certain water works, entered into a contract with the park commissioners of the city of Brooklyn to supply water to Prospect Park, and the defendant’s pipes were connected with the mains belonging to the city, which were, under the control of the commissioners. On account of an alleged failure of the defendant to perform certain conditions of the contract, the commissioners ordered the plaintiff, who was inspector of parks in Brooklyn, to disconnect the defendant’s pipes. This the plaintiff did in a proper manner, causing no unnecessary injury to the defendant’s property. The defendant, knowing that the plaintiff was acting under the orders of the park commissioners, who were his superior officers, presented to a magistrate a verified complaint, which did not disclose the plaintiff’s official relation to the commissioners or the circumstances under which he acted, but alleged that he “ did commit a misdemeanor, to wit: by maliciously and wilfully cutting the water-main” of defendant, against the statute (Penal Code, § 639, subd. 8), which provides that a person who willfully or maliciously displaces, removes, injures or destroys * * * - a pipe or main for conducting gas or water * . * * is punishable by imprisonment for not more than two years.” The plaintiff was arrested under a warrant, and the proceedings were subsequently terminated by his discharge. In affirming a judgment of the G-eneral Term, which affirmed a judgment in favor of the plaintiff, entered upon a verdict in an action brought to recover damages for malicious prosecution, the Court of Appeals said, in an opinion by Judge Andrews : “ When the defendant applied to the magistrate for a warrant, he was chargeable with knowledge that in obeying the directions of the park commissioners the plaintiff had not ‘ maliciously and wilfully ’ disconnected the pipes as charged in lfis complaint. He did not disclose to the magistrate the relation in which the plaintiff stood to the commissioners, or the circumstances under which he acted. *. * * While it is true that what constitutes probable cause, where an arrest has. been made, does not depend upon the question whether an offense has been actually committed, or upon the innocence of the accused, but upon the prosecutor’s belief of his guilt, based upon reasonable grounds, * * * nevertheless, applying this test in this case, the jury were justified in their conclusion that the defendant had no reasonable ground for believing that the charge made by him was true. The plaintiff intentionally disconnected the pipes, and it may be con- • ceded in so doing violated a right of the defendant. But the wor d wilfully ’ in the statute means something more than a voluntary act, and more also than an intentional act which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness.”

So in the case here under review, the magistrate who issued the warrant in the first prosecution, and before whom the plaintiff wás taken in the second instance, was not informed of the fact that the plaintiff was not acting independently, but under the direction of one claiming title to the property. He, therefore, had nothing to lead him to any conclusion but that the plaintiff had acted with a wrongful purpose. If the word willfully,” as used in section 639 of the Penal Code has the meaning assigned to it by the Court of Appeals, there is no reason why it should have a different meaning in section 640, where the construction is precisely the same. The Wass case is a conclusive authority on the point.

The jury’s conclusion that the second malicious prosecution was without probable cause was fully sustained by the evidence, and we believe the existence of malice was, in both instances, a fair deduction. (Big. Torts [7th ed.], 16-20, 106, 107.) In addition to what has been said in regard to the first prosecution, which applies also to the second, it séems clear that the plaintiff, on the occasion when he was taken into custody by the officers, had done nothing to render himself liable to apprehension as a criminal — as “a person guilty of using or of procuring, encouraging or assisting another to use, any force or violence in entering upon or detaining any lands or other possessions of another, except in the cases and the manner allowed by law.” (Penal Code, § 465.) The plaintiff was merely going into the building to work, as he had been doing daily since his first arrest and discharge, and with the knowledge of the defendant. Ho force would have been necessary if the defendant had not taken a position squarely in the doorway. Only the slightest force appears to have-been used by the plaintiff at anytime, until there was ah unlawful attempt to accomplish an actual restraint of his person by the defendant and the officers, when he probably was acting in self-defense. Heither the officers nor the defendant had the right to arrest the plaintiff. He was not committing, or attempting to commit, a crime in their presence, and it is not claimed that he had at any time committed a felony. (Code Crim. Proc. §§ 177, 183.) The defendant rendered himself liable by directing the officers to make the arrest when no crime had been committed. (Farnam v. Feeley, 56 N. Y. 451.) The testimony relating to the second arrest may well be characterized in the language of the court in People v. Smith (24 Barb. 16), where it was said, in reviewing the evidence in an action for forcible entry : It is obvious that this proof falls altogether short of that which the well-settled rules of law require. The case shown is that of a mere ordinary entry, made under claim of title. If the defendant has no title, it is a common trespass. There was no great or unusual force; there was no terror, and if'there was either, it could not relate to the person of the prior occupant. There were no unusual weapons; no acts of violence; no menaces, threats, signs or gestures which could give any ground to apprehend injury or danger from standing in defense of the possession. The case is not brought within the words of the statute, or the mischief it was designed to prevent.”

The defendant concedes that “Mr. Jennings was entirely satisfied with the improvements” the plaintiff was making, and that he “ did not consider his work or his occupation and possession there as adverse at that time,” and did not consider it as injuring Mr. Jennings’ title.” It seems, then, that the strenuous activities of the defendant were directed to the securing of a bare possession of the premises. It would be a strange doctrine to announce that rival claimants to the possession of real property can each at will exercise the well-guarded right to arrest without warrant, in an effort to maintain a momentary occupancy gained during the other’s temporary absence. Possession of a less scrambling and disorderly character may readily be secured by a person holding a conveyance of lands sold for unpaid taxes in the manner prescribed by section 154 of the Tax Law (Laws of 1896, chap. 908). In the absence of a substantial basis for arrest and criminal prosecution, this procedure recommends itself to the consideration of persons desiring the possession of real property under claim of title by virtue of tax sales.

The judgment should be affirmed, with costs.

Goodrich, P. J., Jenks ’and Hooker, JJ., concurred.

Judgment and order affirmed, with costs. 
      
       See Bacon v. Towne, 4 Cush. 238.— [Rep. t Oarl v. Ayers.
      
     