
    William J. Hazzard, Resp’t, v. William H. Flury, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    1. Malicious prosecution—Probable cause.
    In an action for malicious prosecution if the facts do not permit an inference that the person arrested had committed an offense against the law, the question of probable cause is one of law for the court. Probable cause maybe founded on misinformation as to the facts, but not as to the law.
    3. Same.
    By an agreement plaintiff had the right to take certain rugs, sell them, lease them or keep them in his possession until aiter demand made for their return by the defendant, when he was to return them or the cash or a properly signed lease for them. The defendant’s attorney having notified plaintiff that the former demanded rugs amounting to $88.25, it was agreed that he receive infull $36.25 and thirteen Smyrna thirty-inch rugs. Plaintiff paid the money in two installments, at the second payment excusing his failure to return the rugs and promising to do so in a few days. But a few hours before such payment defendant, on complaint in writing that plaintiff had appropriated a rug to his own use, procured a warrant on which plaintiff was arrested several weeks afterwards, and after the delivery to defendant of thirteen rugs, which he objected to as not being of the kind, etc. Held, that these facts did not permit an inference that defendant had probable cause to believe that plaintiff was guilty of larceny, and that defendant, in causing the arrest of plaintiff, did so without probable cause to believe that an offense had been committed.
    3. Same.
    That the right to make the demand given by the first agreement was waived by defendant when he made the agreement of settlement.
    Appeal from judgment of the general term of the city court of Brooklyn, entered on an order affirming a judgment of the trial court in favor of the plaintiff.
    
      B. W. Newhall, for app’lt; William J. Gay nor, for resp’t
   Pabkeb, J.

The only question requiring consideration is presented by an exception to the charge. The court instructed the jury that the plaintiff did not commit an offense and defendant, did not have probable cause to believe that he had, and submitted to their consideration the question of malice only. The defendant excepted. Where facts are undisputed and but one inference can be drawn from them, the question of probable cause is one of law for the court.

The facts so far as that proposition is concerned aré not in dispute. If, then, they do not permit an inference that defendant had probable cause to believe that the plaintiff had committed an offence against the law the instruction was right The defendant furnished to the plaintiff a quantity of rugs under an agreement which provided that when called upon to do so, by the defendant, the plaintiff should return the rugs to the defendant in good order, or the cash, or a properly signed lease for same.

In March of the year following the defendant placed in the hands of his attorney a statement of the rugs which he claimed the plaintiff had not returned or accounted for as provided by the agreement. The amount claimed to be unpaid was $88.25. After notice the plaintiff called upon the attorney and disputed the correctness of the account. He tendered to defendant personally the sum of $42.00, at the same time insisting that it was the only sum owing by him. It was finally agreed that the defendant should receive in full settlement of the account, and consequently in payment of the rugs theretofore delivered, $36.25 in money and thirteen Smyrna thirty inch rugs. As to the quality and character of the rugs to be delivered pursuant to this settlement the parties differ. That difference, however, is not of importance here except in so far as it throws light upon the after conduct of the parties.

Subsequently the plaintiff in two installments paid the sum of money agreed upon. When he made the last payment he presented an excuse for his failure to deliver the rugs called for by the settlement, and promised that it should be done in a few days. Two or three hours before such payment and conversation, the defendant, accompanied by his attorney, had gone before a committing magistrate, and made complaint in writing that the plaintiff had appropriated to his own use a rug belonging to the defendant. (The rug referred to being one of those embraced in the statement which formed the basis of the settlement heretofore alluded to.)

A warrant was issued thereon the same day, but the defendant was not apprehended for several weeks thereafter. When the defendant received the last installment of money, he did not inform the plaintiff of the steps which he had taken to procure his arrest; and for some reason not explained the warrant was not, in fact, served until after the purchase and delivery to the ' defendant of thirteen rugs which plaintiff claimed was in strict fulfillment of the terms of settlement The defendant refused to receive them because they were not John Bromley & Sons’ rugs,, and, therefore, as he claimed, not in accordance with the agreement

Now, can it be said that these facts permit an inference that the defendant had probable cause to believe that the plaintiff was guilty of larceny ?

By the original agreement plaintiff had the right to take the rugs, sell them, lease them, or keep them in his possession until after demand made for their return by the defendant. Not until after demand and refusal could the plaintiff be in the wrong. But the right to make such demand as to this rug was waived by the defendant when he made the agreement of settlement to - which we have referred. Thereafter the plaintiff had the right to the possession of the rug.

The fact that his counsel may have advised him otherwise, while proper upon the question of malice, does not form the basis for a finding of fact that he had probable cause to believe the plaintiff guilty of larceny. Probable cause may be founded on misinformation as to the facts, but not as to the law.

The facts within his knowledge did not indicate that a crime had been committed. They did not tend to cause a man with knowledge of the law to suspect or believe that it had been violated, and the defendant was bound to know the law. The court therefore rightly instructed the jury, as a matter of law, that the defendant in causing the arrest of the plaintiff did so without probable cause to believe that an offense had been committed by the plaintiff. One of the reasons assigned, inadvertently as we think, by the trial judge for such instruction was not well-founded. He asserted that no offense having been committed there could not be probable cause to justify the action of defendant. On the contrary, the rule is that whether a person have probable cause to make a criminal accusation against another is not necessarily dependent “ upon the guilt or innocence of the accused, or upon the fact whether a crime has been committed. * * * If the apparent facts are such that a discreet and prudent person would be led to the belief that a crime had been cotiunitted by the person charged he will be justified though it turns out that he was deceived, and that the party accused was innocent;” Carl v. Ayers, 53 N. Y., 14. But as we have held the judge correctly determined the question of probable cause and the fact that he may have been led to a right decision in part by erroneous reasoning cannot be complained of by the defendant. It is the decision, and not the mental process by which it is reached, which is the subject of an exception.

The judgment should be affirmed.

All concur.  