
    Gierhon v. Ludlow.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Malicious Prosecution—Probable Cause.
    In an action for malicious prosecution, where the only evidence tending to show probable cause is that of defendant and his agent, while plaintiff testifies that he was not guilty of the charge, in which he is corroborated by others, as well as by the fact of his acquittal, it is error to dismiss the complaint, as the question is for the jury.
    Appeal from circuit court, Westchester county.
    John D. Gierhon was arrested in the city of Yonkers for throwing rubbish in a dock on Pier street of that city, and held to bail to answer that charge. Subsequently he was tried by a jury, and acquitted. The charge was made by -Michael Day, acting under the direction and as agent of Thomas W. Ludlow; the latter being present at the trial. Gierhon sued Ludlow for malicious prosecution, and proved by his own testimony, and by that of others, the falsity of the charge. The evidence for defendant, in contradiction of the statements of plaintiff, consisted only of the testimony of defendant and his agent Mr. Day. It appeared that rubbish had fallen or was thrown into the river at a point where plaintiff was constructing a sewer, and Mr. Day believed, or professed to believe, plaintiff to be responsible for it. Defendant, confiding in Mr. Day’s statements, authorized the latter to institute the prosecution. The court dismissed the complaint, and exceptions thereto were ordered to be heard at the general term at first instance.
    Argued before Barnard, P. J., and Pratt, J.
    
      Joseph F. Daly, for appellant. Lewis L. Delafleld, for respondent.
   Pratt, J.

I think this case ought to have been submitted to the jury. The question whether or not there was probable cause for the complaint to the magistrate did not rest upon that which the law v.iews as undisputed testimony. The credibility of the personal testimony of the defendant was for the jury, within well-established rules. The other testimony of defendant’s witnesses came from persons who stood in such relations to him that their testimony was within the same rule. Besides that, there was a denial by the plaintiff that he had done the wrong alleged against him before the magistrate, and the undisputed fact that the plaintiff was tried on that charge and acquitted by the verdict of a jury. The testimony clearly shows that defendant was the real mover in this unfounded criminal prosecution. He retained the counsel who appeared against plaintiff before the magistrate, and instructed him to procure the warrant. He attended at the trial, and seems to have been the person who was actually responsible for it. The complaint was not made by defendant personally, but by his agent, who acted under his direction and on the advice of his counsel. He was clearly the real prosecutor. The case is very close to the border line; but, on the whole, I think was within the rule which required its submission to the jury. The plaintiff’s exception to the learned trial judge’s ruling dismissing the complaint should, therefore, be sustained, and a new trial should be ordered. It seems that, although the exceptions were regularly ordered to be heard in the first instance at the general term, another order absolute was also entered dismissing the complaint on the merits. I do not understand that these orders were intended to be, or were, in fact, in conflict, or that the latter was intended to supersede the former.- It will be safer, however, to reverse the latter order, to the end that full force and effect may be given to the former, and that should be accordingly done.  