
    Frank A. Babor, Respondent, v. Herman G. Goldberg, Appellant, Impleaded with H. Goldberg Underwear Inc., Defendant.
    First Department,
    December 18, 1939.
    
      Samuel D. Lasky of counsel [Leo L. Hoffman with him on the brief; Winick, Barnett & Hoffman, attorneys], for the appellant.
    
      Irving Maxon, for the respondent.
   Per Curiam.

The case was submitted to the jury upon the theory of malicious prosecution. In such an action, as charged by the court, the burden of proving lack of probable cause is upon the plaintiff. We are of opinion that he failed to sustain such burden. The material facts not being in dispute, the existence of probable cause was a question of law for the court and not one of fact for the jury. (Anderson v. How, 116 N. Y. 336; Rawson v. Leggett, 184 id. 504; Day v. Levine, 181 App. Div. 261; affd., 228 N. Y. 588; Dachs v. DeLite Realty Co., 210 App. Div. 230.) Upon such undisputed facts, the existence of probable cause clearly appeared as a matter of law.

It follows, therefore, that the judgment appealed from should be reversed, with costs, and the complaint dismissed, with costs.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Judgment unanimously reversed, with costs, and the complaint dismissed, with costs.  