
    (16 Misc. Rep. 31.)
    DAVIDOFF v. WHEELER & WILSON MANUF’G CO.
    (Supreme Court, Appellate Term, First Department.
    February 26, 1896.)
    1. Appeal—Review—Weight of Evidence.
    The affirmance by the general term upon the question of preponderance of the evidence is conclusive as to that question upon the appellate term.
    2. Trial—Dismissal of Complaint.
    AVhen there is any evidence in support of plaintiff’s cause of action, no error of law appears in the denial of defendant’s motion to dismiss the complaint.
    8. Malicious Prosecution—Reasonable Belief.
    A request for an instruction in an action for malicious prosecution, which permitted inquiry by the jury as to the actual as well as the reasonable belief of the prosecuting party, was properly refused.
    4. Same—Advice of Counsel—Presumption.
    The fact that defendant, in an action for malicious prosecution, consulted counsel, and subsequently instituted the prosecution on which the action is based, does not raise a presumption that the prosecution was advised by counsel.
    6. Same—Statement of Facts—Necessity.
    In the absence of a showing that defendant in an action for malicious prosecution made a full and fair statement of the case to counsel before instituting the prosecution, it was proper to reject a question put to him as to what advice counsel gave him.
    
      6. Evidence—Foundation for Question.
    The ruling of the court in rejecting the question was not rendered erroneous by the fact that defendant subsequently testified that he had made a full and fair statement to counsel.
    Appeal from city court of New York, general term.
    Action by Joseph Davidoff against the Wheeler & Wilson Manufacturing Company for malicious prosecution. From an affirmance by the general term of the city court of a judgment on a verdict for plaintiff (35 N. Y. Supp. 1019), defendant appeals. Affirmed.
    Argued before DALY, P. J., and McADAM and BISCHOFF, JJ.
    Holden & Allen, for appellant.
    Morris Cukor, for respondent.
   BISCHOFF, J.

The appellant’s counsel has devoted a considerable portion of his brief to argument upon the facts, and touching the weight of the evidence in this case, which industry upon his part must go unrewarded, since the affirmance by the general term below concludes us upon the question of preponderance, and we must confine our attention to the exceptions taken at the trial. Claflin v. Watch Co., 7 Misc. Rep. 669, 28 N. Y. Supp. 42; Gold v. Serrell, 6 Misc. Rep. 124, 26 N. Y. Supp. 5; Meyers v. Cohn, 4 Misc. Rep. 185, 23 N. Y. Supp. 996. There was certainly some evidence in support of the plaintiff’s cause of action, and hence no error of law appears from the denial of the defendant’s motion for a dismissal of the complaint. The action was for malicious prosecution, based upon the fact that the defendant procured the plaintiff’s imprisonment for eight days, pending examination by the grand jury into the defendant’s complaint of larceny, which charge was rejected by that body. The plaintiff’s evidence showed that he had received a certain machine from the defendant under a contract whereby he was to pay sums upon installment in order that title might finally vest in him, and it was further provided that the machine should not be removed from the place of delivery without notice to the defendant. Subsequently, permission for removal into the custody of one Eisenstadt was given by the defendant, and notice of such removal was received from the plaintiff. Thereafter the defendant notified the plaintiff that the machine had been removed from this last location, and required him to trace it, which he did, and forthwith sent a postal card to the defendant, advising them as to where the chattel could be found. Some days after-wards he was arrested upon the defendant’s complaint, and it is in evidence that one of the defendant’s agents admitted, at the time of the arrest, that the postal card had been received. No question of law, therefore, arises upon the evidence, since all the elements of a cause of action for malicious prosecution are found in the matters detailed. The jury believed the plaintiff’s evidence and the general term were satisfied with regard to the preponderance of proof. It it not for us to look further.

The first exception relied upon was taken to the court’s refusal to charge, “in the form Requested,” that “the true inquiry for the jury is, not what were the actual facts as to the guilt or innocence, but what did the defendant have reason to believe, and what did he believe, in reference thereto, at the time of the complaint.” The ruling of the court was certainly very proper, since this proposition permitted inquiry as to the actual, as well as the reasonable, belief of the prosecuting party, whereas the latter kind of belief was alone in question. Fagnan v. Knox, 66 N. Y. 525.

Next it is claimed that the court erred in refusing to charge, in effect, that, if the defendant’s action was based upon advice of counsel, given after a full and fair statement of the case, the plaintiff could not recover. The question of advice of counsel, however, was not in the case, since it does not appear that any advice was given favorable to the action taken. True, the defendant consulted counsel, and subsequently instituted these criminal proceedings, but whether upon advice of counsel or not is a matter of surmise merely. Therefore, the ruling was not erroneous. So, too, the court properly excluded the questions whether the defendant’s counsel had carefully considered the case, and had given his advice in good faith. In any aspect, this inquiry would seem to have been immaterial; but, as noted, the advice given, whatever it may have been, did not appear to have influenced the situation.

The objection to the question put to the defendant’s manager by defendant’s counsel, touching the bringing of this complaint, “What was my advice to you?” was well sustained, it not having been shown that a full and fair statement of the case had been made, and this was essential. Ames v. Kathbun, 55 Barb. 194. The fact that, subsequently, the witness stated that he had made such a full and fair statement certainly would have rendered the evidence admissible, had counsel desired to ask the question again thereafter; but the ruling, when made, could not correctly have been otherwise.

No further points are presented, and we have but to affirm the judgment.

Judgment affirmed, with costs." All concur.  