
    Palmerino Orefice, Respondent, v. Giovanni Savarese, Appellant.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Appeal — Review — Scope of review — Matters reviewable on appeal from judgment and order denying new trial.
    Malicious prosecution: Nature and elements of the wrong — Concurrence of malice, want of probable cause and favorable termination: Want of probable cause — Definitions: Trial — Questions of law and fact — Probable cause.
    New trial — Grounds — Verdict or findings contrary to law or evidence — Excessive damages in action for malicious prosecution.
    Where- an appeal is taken solely from an order denying defendant’s motion for a new trial, the appellate court can only, consider the weight of evidence.
    
      The plaintiff, in an action for malicious prosecution, must show that the prosecution was instigated by the defendant; that it has been determined in plaintiff’s favor; that there was no probable cause and that defendant acted from malice.
    If the facts, in an action for malicious prosecution, are undisputed and admit of but one inference, the question of probable cause is for the court; if the facts are disputed or capable of opposing inferences the question is for the jury.
    If probable cause exists, it is a defense to an action for malicious prosecution, even though express malice be proved.
    That defendant had knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he had lawful grounds for prosecuting the plaintiff is “ probable cause ” and a defense to an action for malicious prosecution.
    A verdict of $450, in an action for malicious prosecution, held not excessive.
    Appeal by the defendant from an order of the Oity Court of the city of New York, denying a motion for a new trial.
    M. Frederick Werner, for appellant.
    Andrew S. Fraser, for respondent.
   Per Curiam.

Plaintiff got a judgment for $450 and costs for malicious prosecution upon the verdict of a jury. As this appeal is solely from the order denying the motion for a new trial the appellate court can only consider the weight of evidence. The defendant based his motion for a new trial on the claim that defendant had shown probable cause. The plaintiff, to maintain an action for malicious prosecution, must show: (1) that the prosecution was instigated by the defendant; (2) that it has been determined in plaintiff’s favor; (3) that there was no probable cause; and (4) that defendant acted from malice. It is not necessary, however, to establish affirmatively actual malice on the part of defendant, as malice may be inferred from lack of probable cause. The question of probable cause may be a question of law for the court, or one of fact for the jury, depending on circumstances. If the facts are undisputed and admit of but one inference the question is one of law for the court; but, if the facts are disputed or capable of opposing inferences, the question is one for the jury. See Wass v. Stephens, 128 N. Y. 123; Langley v. East River Gas Co., 41 App. Div. 470. If probable cause exists it is a protection against an action for malicious prosecution, even though express malice is proved. Bush v. Smith, 181 N. Y. 5. If the defendant had knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he had lawful grounds for prosecuting the plaintiff, probable cause was present. The facts are substantially as follows, viz.: On the morning of June 8, 1903, defendant discovered that a valise belonging to him, and containing over $800, had been stolen the previous night. He called upon the police department who sent a detective to investigate the matter. Plaintiff, who was an employee of defendant, together with other employees, all of whom seem to have had access to the room where the valise had been left, was called before the detective and defendant, and was questioned with regard to the matter. He answered in an insolent and apparently somewhat evasive manner; and defendant, upon the advice of the detective, told the latter to arrest the plaintiff. The latter was examined before the police magistrate and discharged for want of proof against him. Thereafter, the defendant and one Bonogara, who was “ very nervous,” according to defendant’s testimony, searched the house again and found the valise on the roof; and, subsequently, a girl named Maria Bosetti told defendant that she had seen plaintiff running up to the roof with this valise in his hand. Thereupon defendant had plaintiff arrested the second time; and, after a trial in the Court of General Sessions, plaintiff, was acquitted and discharged. It seems to us that, while the jury might well have found probable cause such as to justify a reasonable man in the belief that he had lawful grounds for prosecuting plaintiff, still the facts may be said to be capable of opposing inferences, and that the question of probable cause was, therefore, one for the jury, whose finding on the subject is conclusive, Wass v. Stephens, supra. The amount of the verdict, $450, was not excessive damages, and we are of the opinion that the court below was justified in denying the motion for a new trial.

The order should be affirmed, with costs and disbursements.

Present: Gildersleeve, MacLean and Seabury, JJ.

Order affirmed, with costs and disbursements.  