
    ANNIE JENNINGS, Respondent, v. STRATFORD P. DAVIDSON and CATHARINE O. DAVIDSON, his Wife, Appellants.
    
      Action for malicious prosecution — malice — inference as to.
    
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. The action was brought to recover damages for malicious prosecution.
    Upon the appeal the court at General Term said: “ The plaintiff, to maintain her action, was bound to prove both want of probable cause and malice. Malice may be inferred from the want of probable cause. The court erred in charging the jury that ‘ the law infers malice when there is a want of probable cause.’ The jury might infer it, but it is not an absolute inference of law. The court refused to charge. the proposition ‘ that when there is want of probable cause, malice may be inferred,’ saying ‘ the jury are bound to infer it.’ This was also erroneous. (Heyne v. Blair, 62 N. Y., 19.)
    
      IJpon the whole case, I think there was abundant proof of probable cause. It is not necessary, however, to decide this question upon this appeal. A new trial may be supported by other evidence.”
    
      J. Warren Lawton, for the appellants. Mcvrtin J. Keogh, for the respondent.
   Opinion by

BaeNAed, P. J.;

G-ilbeet and DtemaN, JJ., concurred.

Judgment and order denying new trial reversed and new trial granted, with costs to abide event.  