
    James H. Smith, Respondent, v. The New York Anti-Saloon League, Appellant.
    Second Department,
    October 23, 1907.
    Malicious prosecution — arrest for illegal sale of liquor—facts raising question for jury—authority of agent — charge—probable cause and malice — evidence—motion to strike out improper answer.
    In an action for malicious prosecution against a defendant incorporated for "the purpose of restraining traffic in intoxicating liquors, a motion fór a nonsuit is properly .denied when it appears that the defendant" employed and paid an agent and assistants to discover violations of the Liquor Law,' procuring his appointment as a special policeman, not paid by the city; that the defendant ■ paid the expenses of several prosecutions for violations of the Liquor Law instituted by said agent, at some of which prosecutions the defendant’s general manager appeared in court;- that said agent arrested the plaintiff, a hotelkeeper, on a warrant obtained on the complaint of one of his assistants for selling liquor on Sunday in a hotel which he never was in and had nothing to do with, on the hearing of which prosecution the plaintiff was discharged.
    On such a state of facts it is for the jury to say whether the defendant was the procuring cause or instigator tif the prosecution, and it is not necessary that the. plaintiff prove an express direction to the agent to cause the arrest and prosecution. "
    When the defendant gives no evidence that it had'information that the plaintiff made the sales for which he was arrested, and it is undisputed .that he did not make the sales,, it is proper for the court to charge that there was no probable cause.
    In an action, for malicious prosecution it is proper to charge that malice may be found from lack of probable cause.
    Malice may be predicated on recklessness or gross negligence in making the charge.
    When the answer to a preliminary question, answerable by yes or no, is objectionable, the proper course is to move to strike it out.
    Hooker, J., dissented.
    Appeal by the defendant, The New York Anti-Saloon League, from a judgment of the City Court of Mount Vernon in favor of the plaintiff, entered in the office of the clerk of said court on the 5th day of February, 1906, upon the verdict of a jury for $200, and also from an order beariug'date the 2'Ttli day of February, 1906, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    The action was for damages for malicious prosecution.
    
      Elmer E. Cooley, for the appellant.
    
      Frank A. Bennett, for the respondent.
   Gaynor, J.:

It cannot be gainsaid that the jury could have found the foliow^ ir.g facts from the evidence, direct' and circumstantial. The defendant Was. incorporated especially to form and foster public sentiment by agitation and education against the liquor traffic, and to direct that sentiment toward the enactment and enforcement of laws restricting and suppressing the traffic in intoxicating liquors as a' beverage ”,/ as- appears from its certificate of incorporation. It employed one Dodge :as its chief detective to find out violations of the liquor law. It paid him. a regular salary, -.and also his expenses, including the- hiring of any -men he needed in the work. He .employed one Brewster and others to represent and assist him. The.defendant put Dodge to work on the City'of Mount Vernon. It requested' the police commissioner of that city to appoint him a special policeman, and he was appointed. The city did not pay him for his work as such; the defendant did; it was included in lii's salary and expense account; • He and his men caused the arrest, and prosecucution of a number- of persons for violating the liquor, traffic law in the said city. All of his expenses therein were paid by the defendant by means of bills regularly rendered. -. At some of the prosecutions the superintendent and general manager of the defendant was' present in court with him. The plaintiff, a hotel keeper, was arrested by Dodge on a warrant obtained on the complaint of Brewster on a charge of selling liquor on Sunday in a hotel that he was never in and had nothing to do with, and was finally discharged ' on a hearing, after being first locked up -and then bailed.

. On these facts the learned trial judge refused to grant a non-suit, and left it to the jury to say whether the defendant was the procuring cause .or. instigator of the plaintiff’s prosecution; . This was not error.. Even.those engaged in laudable work must not .violate the law. The law. considers the substance of things, and could not say that the evidence did not show that.the defendant was engaged in the business'of getting evidence of violations of the liquor traffic law, and of prosecuting the delinquents. - For what did it have Dodge appointed a special policeman unless to make, arrests ? • And why did it pay all his expenses in getting .evidence'.and prosecuting unless he was employed for that purpose ? The law had to take a comprehensive view of the case, and leave it to the jury. That it was not proved that any officer of the' defendant said to Dodge' or the others in so many words to arrest and' prosecute was not enough to take the case from the jury. There were other Tacts and circumstances to be considered; the whole purpose and previous course of conduct of the defendant had to he considered,..'.-

Dodge was asked'by counsel for, plaipAff if he knew who made the application for his appointment as a special policeman. He was allowed to answer without objection, and answered that the defendant did. Counsel. for the'■defendant -then objected to the-question, the answer not being what he. expected,, or to his liking, stating as his ground that “ this corporation must act through its officers ”. The objection was • overruled and he excepted. The question called for the preliminary answer yes or no, and such an answer. would be competent. The objection to the question was-therefore hot well taken. The’course was to move to strike -the answer out, but this was not done. There are no other exceptions which need discussion. The learned trial judge was right in charging the jury that there was no probable cause. It was undisputed that the plaintiff 'did not sell liquor in the hotel alleged in the complaint against him, and there was no evidence or information that he did. It was for the jury to say whether the blunder of accusing him of-doing so was not out of recklessness or gross. negligence, and that would be enough to support a finding of malice.. The learned trial judge was right in charging that malice could be found from the lack of probable cause. One passage in the charge seems to imply that malice could be found from two other previbus prosecutions of the plaintiff; but it was not excepted to, nor was any point made of it on the argument nor is any made' in the brief of counsel fpr appellant — nor was any made on the motion for a new trial. ' ■

The judgment and order should be affirmed,

Jenks, Rich and Miller, JJ., concurred; Hooker, J., dissented.'

Judgment and order of the City Court of Mount Vernon affirmed, with costs.  