
    Lee E. Day, Appellant, v. David Levine et al., Doing Business under the Firm Name of Practical Clothing Specialty Company et al., Defendants, and Philip Cedar, Respondent.
    
      Day v. Levine, 181 App. Div. 261, affirmed.
    (Argued March 4, 1920;
    decided April 13, 1920.)
    Appeal from a judgment, entered February 20, 1918, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action for malicious prosecution. Plaintiff, an elevator operator, was taken out of his car, shortly after arriving at his work, and arrested and imprisoned, and afterwards indicted and prosecuted upon a charge of grand larceny in having stolen seven suits of clothes from the respondent’s clothing factory on the ninth floor of the building where he was employed. Upon trial he was acquitted. In this action the evidence was uncontradicted that respondent herein was informed by his head shipping clerk that the latter had seen the plaintiff take the stolen clothes from the building and that whatever connection respondent had with the prosecution was not prompted by malice. The Appellate Division held that the proof affirmatively showed the existence of probable cause.
    
      Wilford H. Smith for appellant.
    
      Daniel P. Hays for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Hogan, Cardozo, McLaughlin and Elkus, JJ. Dissenting: Crane, J.  