
    PURCELL v. LONG ISLAND CITY.
    (Supreme Court, General Term, Second Department.
    February 11, 1895.)
    Malicious Prosecution—Connecting Defendant with Charge.
    Evidence that a school trustee of defendant city preferred a charge against plaintiff for stealing school property, and that the prosecution was conducted by the corporation counsel, is not alone sufficient to connect the city with the prosecution.
    Appeal from circuit court, Queens county.
    Action by Margaret E. Purcell against Long Island City for malicious prosecution, in which the damages were laid at $10,000. The complaint was dismissed, and plaintiff appeals. Affirmed.
    Argued before DYKMAN, PRATT, and CULLEN, JJ.
    I. Newton Williams, for appellant Wm. E. Stewart, for appellee.
   DYKMAN, J.

This is an action for the recovery of damages for malicious prosecution. The cause came on for trial at the circuit, and, after the jury had been impaneled and sworn, the counsel for the defendant moved to dismiss the complaint, because it was apparent that the plaintiff had no cause of action. Thereupon the trial judge said to the counsel for the plaintiff:

“We will take your statements of the facts connecting the city with the prosecution. Plaintiff’s counsel states that he would offer proof to sustain the allegation connecting defendant with the acts of the trustees, and he will show as follows: That the complainant in the criminal prosecution mentioned in the complaint was one of the school trustees of the Fifth ward of Long Island City; that he was duly elected as such under the charter of the city, and served in such capacity, and that he charged the plaintiff here as such trustee with feloniously stealing the property mentioned in the complaint, and, further, that t'he said property belonged to the defendant under the charter of Long Island City; that the corporation counsel of defendant . appeared on the trial, and the prosecution of the action was conducted by the corporation counsel, and plaintiff offers proof of the other allegations of the complaint. The Court: The court holds that evidence, if proved, insufficient to connect the defendant, a municipal corporation, so as to render it liable. Plaintiff’s Counsel: We offer to prove that the plaintiff’s arrest and court proceedings of the trial referred to were published in the daily papers of Long Island City and New York City; that the trial was adjourned from time to time before the police justice before whom the trial was had, and the corporation counsel appeared on each of the adjourned hearings, and prosecuted the criminal charge against plaintiff, which charge was dismissed, and the plaintiff discharged from arrest, and that ended the proceedings. The Court: I hold that it is insufficient to connect the municipality, assuming, for the argument, that every part of your cause of action would be established. (Plaintiff’s counsel excepts. Complaint dismissed. Exception by plaintiff.)”

It is not necessary upon this appeal to decide whether an action for malicious prosecution can be maintained against a municipal corporation, because the facts fail to connect the defendant with the prosecution in this case. It is a case of failure of proof to sustain an alleged cause of action. The judgment should be affirmed, with costs. All concur.  