
    DANN v. WORMSER.
    (Supreme Court, Appellate Division, Second Department.
    March 7, 1899.)
    1. Malicious Prosecution—Instigation—Question por Jury.
    Where, in an action for malicious prosecution, the criminal proceeding was instituted by an officer, but there is evidence that it was instigated by defendant, the jury must determine whether or not defendant was really the prosecutor, since, if he was, it is immaterial that the formal complaint was made by another.
    2. Same—Appeal.
    Whether or not defendant, in an action for malicious prosecution, is not liable because all the statements contained in the complaint instituting the criminal proceeding were true, cannot be determined where the case on appeal does not contain the criminal information or any statement of its contents.
    3. Same—Probable Cause.
    Although the evidence, in an action for malicious prosecution, is uncontroverted, if the facts are capable of supporting different inferences, the question of probable cause is for the jury.
    4. Same—Extra Allowance—Excessiveness.
    The imposition of costs and an extra allowance of $1,000 is too severe a penalty to inflict on a domestic servant in favor of her employer, on the dimissal of her complaint in an action for malicious prosecution.
    Appeal from trial term, New York county.
    Action by Susan Dann against Maurice S. Wormser. There was a judgment for defendant, and plaintiff appeals. Transferred from First to Second department.
    Reversed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.
    Charles Gibson Bennett, for appellant.
    Herbert R. Limburger, for respondent.
   WILLARD BARTLETT, J.

The complaint sets out a cause of action for malicious prosecution. At the close of the plaintiff’s case, counsel for the defendant moved that the plaintiff elect whether she desired to proceed upon the theory of malicious prosecution or false imprisonment. The plaintiff’s counsel declined so to elect, whereupon the defendant moved to dismiss the complaint, on the ground that the plaintiff had failed to establish a cause of action, and tiie court granted the motion. The costs awarded by the judgment against the plaintiff, who is a domestic servant, include an extra allowance of $1,000.

The plaintiff was accused of the larceny of certain silverware, which was stolen from the dwelling of the defendant while she was a servant in his household. She appears to have been suspected as soon as the silver was missed, but she was not arrested until several days later, and then not upon a formal complaint by Mr. Wormser, but upon one which appears to have been made by a police officer, who testified upon the trial of the present case, however, that Mr. Wormser did not ask him to arrest the plaintiff at any time, but that he made the arrest on his own account, after an investigation. Hence it is argued that the plaintiff failed to show that the criminal proceedings were instituted by the defendant. This would be correct, if there were no other evidence on the subject of Mr. Wormser’s connection with the prosecution. But there is other proof which tends to show that he instigated the penal proceedings against the girl. The same police officer says: “He asked me whether I did not think, if the girl was arrestéd, probably she might confess.” Mr. Wormser, according to the testimony of the plaintiff herself, distinctly accused her of stealing his silver, said that he delivered her up to the detectives, requested the magistrate before whom she and her husband were arraigned to postpone the hearing in order that further evidence for the prosecution might be produced, and on the adjourned day said to the magistrate, “I want those prisoners held.” The plaintiff was kept in custody from Monday until Friday, when the grand jury refused to indict her, and she was released. This evidence was enough, we think, to make a question for the jury as to whether the' defendant was not really the prosecutor. If he was the real party, it mattered not that the formal complaint was made by some one else. Miller v. Milligan, 48 Barb. 30, 37. “It is immaterial,” says Mr. Addison, “whether the defendant alone makes the charge, or whether he stirs up and procures another to do it. In either case, he is liable in damages.” 1 Add. Torts (6th Ed.) 231.

The liability of the respondent is denied on the further ground that all the statements contained in the complaint made by the police officer against the plaintiff were true, and hence that, if any one is liable, it is the magistrate, and not the persons instrumental in procuring him to act. See Dennis v. Ryan, 65 N. Y. 385. The case on appeal, however, does not contain any copy of the criminal information, or any definite statement of its contents. The policeman simply says: “The complaint I swore to was a truthful statement of all the facts mentioned, as far as my conscience would let me state. My complaint contained nothing but the truth.” It is impossible to tell with any certainty what the witness means by the “facts mentioned,” especially in view of his intimation that his conscience would not let him state them all.

With reference to the question of want of probable cause, the case clearly falls within the doctrine of Heyne v. Blair, 62 N. Y. 19, which requires that question to be submitted to the jury, even where there is no dispute in the evidence, if the facts proved are capable of supporting different inferences.

The plaintiff should have been allowed to go to the jury on all the elements of her cause of action for malicious prosecution. The dismissal of the complaint was, therefore, erroneous, and for this error the judgment must be reversed. Even if the judgment could be "sustained so far as the dismissal is concerned, we should feel bound to reverse that portion which awards the defendant $1,000 extra allowance. The imposition of costs to this amount is a severe penalty to inflict upon a domestic servant in favor of an employer by whom she has been accused of a crime of which she must be deemed innocent. It savors too much of punishment for having had the hardihood to sue.

Judgment reversed, and new trial granted, costs to abide the event. All concur.  