
    WITHAM v. THOMAS et al. KENDALL v. SAME.
    (Supreme Court, General Term, Second Department.
    December 12, 1892.)
    Malicious Prosecution—Probable Cause. Where pieces of property belonging to different owners are separated by a fence sufficient to show the boundary line, and one of the owners, in order to. obtain a view, has trees on the land of the other cut down, a criminal prosecution by the latter of the former, and of his servant, who did the cutting, is not without probable cause.
    Appeal from circuit court, Richmond county.
    Action by Edwin Augustus Witham and by George H. Kendall, respectively, against William Claiborne Thomas and James W. Monk for malicious prosecution. Judgment for delendants in each case, and plaint,ffs appeal. Affirmed.
    Plaintiff Kendall owned a country place adjoining one belonging to defend1ant Thomas’ mother-in-law, Mrs. Von Hoffman, which was occupied by Thomas- and wife in the absence of the owner." Defendant Monk was the attorney of Thomas, and plaintiff Witham was an employe of Kendall, and was engaged in. putting in order Kendall’s country place. Mrs. Thomas, being informed by he» gardener that several trees had been cut down on the place by Witham, wrote-Kendall, who acknowledged that the trees had been cut down to get a view of the Brooklyn bridge, and said that he would have to cut down four more to get the view, and asked Mrs. Thomas’ permission to do so, which she refused. Subsequently she found that Kendall, since their interview, had cut down other trees, and so informed Mr. Von Hoffman, who placed the matter in the hands of defendants, who had Kendall and Witham arrested. On a trial before a justice these latter were discharged. There was a high board fence between the properties, which plaintiffs claimed was down at the time of cutting the trees, but it appeared that there was enough to indicate the boundary line, as Witham testified that in cutting a tree it fell across a part of the fence, and knocked it down.
    Argued before DYKMAN and PRATT, JJ.
    Rudd, Hunt & Wilder, (James M. Hunt, of counsel,) for appellants.
    James W. Monk and George J. Greenfield, for respondents.
   PRATT, J.

We are not able to find any evidence from which the jury could properly say that the prosecution before the justice of the peace was malicious, or that it was without probable cause. On the contrary, we ate disposed to share the surprise expressed by the circuit judge that the accused persons were not held for trial. Where a fence six feet high is standing along a boundary line, the fact that gaps existed in some places would scarcely explain how a careful man could so far trespass upon his neighbor’s land as was done in this case. It is not surprising that the criminal charge was made, for there was apparently a reasonable ground to sustain it. Malice not being shown, and probable cause existing, the nonsuit was rightly granted.

Judgment affirmed.  