
    Max Hart, Appellant, v. Charles H. McLaughlin, Respondent.
    
      Malicious prosecution — evidence that the defendant was informed that the plaintiff was a crook, etc., is incompetent. ' .
    
    In an action for malicious prosecution it is error to permit the defendant to testify that before he instituted the alleged malicious prosecution a person informed him that the plaintiff was one of the worst men he knew; that he had been in prison in Boston; was one of the biggest crooks' in Mew York city, and that he had been in trouble in St. Louis and Chicago and had to leave both those places, and that he was going to “do” the defendant.
    Ingraham, J., dissented.
    Appeal by the plaintiff, Max Hart, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Few York on the 18th day of December, 1899, upon the verdict of a jury, and also from an order bearing date the 15th day of December, 1899, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Milton Mayer, for the appellant.
    
      J. Van Vechten Olcott, for the respondent.
   Rumsey, J.:

The action was for malicious prosecution. The defendant was a witness in his own behalf. In the course of his testimony he swore that in the month of January,. 1897, and before'he had made the complaint upon which Hart was arrested, and which lay at the basis of the action, he Mad a talk with one Elkan, and he was asked what Elkan said to him about Hart. The question "was objected to as incompetent, immaterial, irrelevant and hearsay. The objection was overruled and the plaintiff’s counsel excepted to the ruling. In reply to the question and to. several others of the same nature the defendant testified substantially that Ellran told.him that Hart was one of the worst men he knew, that he had been in prison in Boston, was one of the biggest crooks in New York city, and that he knew Hart was going to “ do ” him, and that Hart had been iil trouble in St. Louis and Chicago and had to clear out and leave both those places. The plaintiff urges that the reception of this evidence was; error for which the judgment and order should be reversed.

In our judgment the exception is well taken, and the admission of this evidence was fatal to the judgment. It was admitted generally in the action, and so the jury were entitled to consider it as bearing not only upon the question of damages but also on the question of probable cause, . and undoubtedly they did consider it upon that point.

That the evidence is hearsay is quite apparent, but it is claimed to be material, because it is urged that when one is attempting to show that he had probable cause for making a criminal charge against another, he has the right to take into consideration the character of that person. The defendant insists that if the person against whom the charge is made is notoriously a man of bad character and has been convicted of other crimes, or is one whose reputation is not good, a reasonable man may believe that such a person has committed a. particular offense upon less proof of its commission than if he were a man who bore a good character in the community. It is quite possible that may be true; and, in view of that possibility, it has been held in other States that in actions of this nature proof of the general reputation of the plaintiff would be competent as bearing upon the question of probable cause, as well as in mitigation of. damages. (Bacon v. Towne, 4 Cush. 217; Barron v. Mason, 31 Vt. 189 ; 2 Greenl. Ev. § 454 et seq.)

Whether we concur in the result of these cases it is not necessary to consider, because the testimony admitted over the plaintiff’s exception cannot be said in any way to' afford proof of the plaintiff’s general reputation, which is all that is said to be admissible in the cases above cited. Nor was it proof of any fact; -and, therefore,, it is not within the reasoning which has led some courts to suggest, but not to decide, that evidence that the plaintiff was guilty of a crime of the same nature as the one for which the defendant caused him to be arrested, is competent as bearing upon the question of probable cause. (Barron v. Mason, 31 Vt. 189.) All that .the tesr timony amounted to was a statement of a person not under oath of his opinion that Hart was a bad man and a crook, and a story that he had been in prison in Boston and had been in trouble in St; Louis and Chicago and had to leave those places. It was hearsay as to specific facts, which may or may not have been true, and which, if true, did not necessarily show that Hart. had been guilty of any crime. So far as it was an opinion, it was a statement of one person of what he thought of Hart based probably upon his own experience or probably upon his dislike. It did not purport to be a statement of the reputation which Hart bore in the community. Whenever the reputation of one is in question, or whenever that reputation is material in enabling another to form an opinion, it must be shown not by specific acts nor by an opinion based only upon specific acts, but upon the general reputation which the man bears in the community, and in no other way can it be proved. (People v. Greenwall, 108 N. Y. 296, 301, 302.)

There was nothing in the evidence which would justify the defendant in coming to the conclusion that Hart was guilty of the crime which he charged against him. The evidence had not the slightest tendency to afford a reasonable man ground to believe that Hart was guilty of any crime, and, for that reason, it was utterly incompetent and the objection was well taken, and the judgment must be reversed. This conclusion renders it unnecessary to consider any of the.other questions presented, which, in every probability, will not arise upon another trial.

The judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and McLaughlin, J., concurred; Ingraham, J., dissented.

Ingraham, J. (dissenting):

It is not disputed but that upon the evidence a question was presented for the jury as to whether or not the plaintiff had sustained the burden of proving the want of probable cause of the plaintiff’s guilt of .the crime of which he was charged. If the testimony of the plaintiff is to be believed it is quite evident that there was no cause for the arrest. If the testimony of the defendant is to be believed it is quite evident that not only had he probable cause for ■believing the plaintiff guilty of the crime of which he was charged,, but that the plaintiff was guilty of such crime and should have been punished.. In an action of this character, to entitle the plaintiff to recover, it must appear that the defendant acted maliciously, with a wanton desire to injure the plaintiff, and that the defendant also acted without probable cause to believe that the plaintiff was guilty of the crime charged. It is, however, the settled rule that the actual malice necessary to sustain the charge maybe presumed from the proof of want of probable caiise, but such want of probable cause is essential to the maintenance of the action. Probable cause has been defined as “ a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged. * * ■* However innocent the plaintiff may have been of the crime laid to his charge, it is enough for the defendant to show that he had reasonable grounds for believing him guilty at the time the charge, was made.” (Foshay v. Ferguson, 2 Den. 619.) Thus, the crucial question in the action is the information which had come to the defendant, and upon which he acted at the time the charge was made. It is also settled that the defendant is entitled to prove statements made to him as- to facts upon which the charge is predicated, and which he, was justified in believing, as an answer to proof made by the plaintiff as to the want of prob_ able cause. This evidence is not hearsay, for it is not received as-proof of the facts stated, but as proof of the conditions under which the defendant acted in making the criminal charge. A defendant, in such an action may prove the existence of facts within his own. knowledge which tended to induce the belief that the plaintiff was-guilty of the crime charged, and he is also entitled to prove statements made to him by others which tended in the same direction. A person under such circumstances has not the power to subject those-, making statements to him to an examination under oath. He is-bound to act upon appearances as they are presented, and if, from, the facts- of which he has knowledge and statements made to him by persons entitled to belief, there was probable cause that the plaintiff was guilty of the crime charged, an action for malicious prosecution cannot be maintained. I think the application of this general principle justified the court in admitting the evidence which was objected to by the plaintiff. The question presented was whether, from the knowledge that had come to the defendant at the time he made the charge, there was a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the plaintiff was guilty of the offense with which he was charged. The offense with which he was charged was obtaining the property of the defendant by false and fraudulent representations. The defendant had personal knowledge of the representations that were made by the plaintiff. As to the falsity of those representations, he made inquiries of those who would naturally have information upon the subject, and was told by those persons that the representations made by the plaintiff were false, and it was upon those statements that he acted. It wps quite competent for him to testify as to the statements that had been made to him by the persons inquired of. The facts tending to show that a crime had been committed would not be competent upon this branch of the case unless it appeared that the defendant, at the time he made the charge, had been informed of them. Thus, it was competent .for the plaintiff to testify as to statements made to him by Webb, who was one of the officers of the company who made the note about which it is alleged the plaintiff made false and fraudulent representations, and also the testimony of the cashier of the Irving Hational Bank as to the amount that the maker of the note had on deposit.- I think, also, that the application of the same rule justified the testimony as to the statements made to the defendant by the plaintiff’s brother-in-law, Elkan. The defendant’s testimony as to Elkan’s representations was that before the note became due, and before the prosecution was instituted, Elkan had an interview with the defendant, at which he stated to the defendant that the plaintiff was one of the worst men in the city;. that he was one of the biggest crooks in Hew York city, and that he (Elkan) knew that-the plaintiff was going to do ” the defendant; that the plaintiff had been in trouble in Chicago and St. Louis, and had to clear out and leave both of those places. If Elkan had known that the plaintiff was attempting tó “ do ” the defendant, which I suppose indicates some attempt to defraud him, and had so stated to the defendant, it would certainly have weight with the defendant as to- his belief in the guilt o.f the plaintiff. This was not competent evidence upon an issue as to the general character of the. plaintiff, but it was a fact that had been communicated to the defendant and upon which he based his belief in the charge against the plaintiff; and I think he was entitled to state to the jury that' such a fact had been communicated to 'him, to be considered by the jury in determining whether or not he had probable cause to believe that the plaintiff was guilty of the crime charged, and whether he had been actuated by actual malice. It is settled tliat evidence of the general character of the person against whom the charge is made and which was known to the person making the charge at tlie time it was made may be given- in evidence upon the question of probable cause (See cases cited in note, 14 Am. & Eng. Ency: of Law, 60), and I can- see no reason why a communication of the fact that the person charged had been guilty of the commission of similar crimes before is not also a circumstance to be considered by the jury in determining this question. It is quite true that proof of former crimes would not of themselves be probable cause or justify a person in making a criminal charge against another; but where a party, had evidence tending to show that another has committed a crime, the fact that he also had evidence, or that statements had been made to him, that the person had committed other crimes of a similar character before, is a circumstance which is competent in submitting the questions of probable cause and of actual malice to the jury. Whether or not he had committed such other crime is entirely immaterial except as evidence as to the conditions under which the defendant acted and the information which induced him to act. As this is the only exception upon which it is proposed to reverse this judgment, it is not necessary to discuss the other questions presented. I do not think that there was error to justify a reversal of- the judgment.

Judgment and order reversed, new trial ordered-, costs to appellant to abide event.  