
    (69 Hun, 57.)
    HOWE v. OLDHAM.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    1. Malicious Prosecution—Malice.
    In an action for malicious prosecution it appeared that plaintiff, while working as a highway commissioner on a road claimed to be a public-highway, and while attempting to remove an obstruction placed there to obstruct the work, was assaulted by defendant. Plaintiff made complaint against defendant for assault and battery on May 24th, on which he was arrested, and pleaded guilty. Defendant procured plaintiff’s arrest on June 2d, following, for an assault in the third degree, and he was acquitted. Defendant gave evidence that an assault was committed on him. The jury were instructed that if defendant, as a reasonable man, had probable cause for the complaint, the action failed, but if plaintiff’s, arrest was made without sufficient cause they might infer malice. Held, that a verdict for plaintiff should be affirmed on appeal.
    2. Same—Advice oe Counsel.
    In such action, where defendant admitted that he procured plaintiff’s arrest at his employer’s request, the question whether defendant did it “of his own volition” raised no question of advice of counsel.
    Appeal from circuit court, Orange county.
    Action by Albert G. Howe against Edward M. Oldham for-malicious prosecution. From a judgment for plaintiff, entered on a verdict, defendant appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    William D. Guthrie, Grant B. Taylor, and George 0. Austin, for-appellant.
    William D. Dickey, for respondent.
   BARNARD, P. J.

The defendant procured the arrest of the plaintiff for an assault in the third degree committed by the plaintiff upon him. The plaintiff was acquitted. Upon the trial it appeared that the plaintiff was a commissioner of highways of the town of Woodbury. On the 23d of May, 1892, he was working upon a road claimed to be a public highway. The defendant, for the purpose of obstructing the work, had drawn a wagon into the brook to prevent the building of a bridge over the brook. The defendant did this under a claim that the road was not a public highway. The plaintiff put his hands on the wagon to draw it out of' the way, and the defendant committed an assault on him. Plaintiff made a complaint against defendant for the assault and battery-on the 24th of May, 1892. Defendant was arrested thereon, and on the 2d day of June, 1892, pleaded guilty to the charge... The defendant made the complaint, and procured the arrest of plaintiff, on the 2d of June, 1892. The defendant gave evidence tending to show that an assault was committed on him. If there was no assault committed, then a case is made out to go to a jury, ■ and, if the jury find no assault committed, then defendant has made a false charge, and thereby caused plaintiff’s arrest. The jury were told that if, from the evidence, the defendant, as a reasonable man, had probable cause for the complaint, the action fatted. The jury were told that if the arrest of plaintiff was made without sufficient cause they might infer malice, and in such case give damages for the injury. Under the finding of the jury the judgment should be affirmed. It is established by the verdict, upon positive and clear proof, that the defendant obstructed the plaintiff, a public officer, in his duties to the public; that when the plaintiff attempted to remove the obstruction the defendant threw him into the stream, -and subsequently struck him; that the defendant falsely asserted that the plaintiff committed an assault upon him; and caused the plaintiff’s arrest and trial. Assuming these facts, the malice of the defendant is easily and necessarily inferred. Heyne v. Blair, 62 N. Y. 19; English v. Major, (Sup.) 12 N. Y. Supp. 935.

The question whether the defendant made the charge “of his own volition” raised no question of advice of counsel. He had admitted in his testimony that he made the complaint at the request of his employer, and, so far as that affected the question of damages, he had the evidence. The sole question presented to the jury was whether the complaint of defendant against plaintiff was false, or not, and no advice of counsel could affect even the question of damages, unless the advice was based on the facts truly stated to the counsel. The charge was not excepted to in respect to so far as it related to the assault. It is too late, on appeal, under the circumstances of this case, to claim error. The jury were told what an assault was, but they were also told that defendant • could act on appearance, which is all that appellant now urges ■ for error.

The judgment should be affirmed, with costs. All concur.  