
    John D. Ferguson, Resp't, v. Thomas C. Arnow, Imp'ld, Appl't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Malicious prosecution—Probable cause.
    Plaintiff was employed by highway commissioners to tear down a fence and part of a building of defendant's father which were claimed to encroach on the highway. Defendant brought action for trespass and had plaintiff arrested, but the complaint was dismissed. It appeared that defendant had testified in a former action that he had been told that the premises encroached, hut he would not remove the fence until the people on the other side removed theirs. In an action for malicious prosecution, Held, that a verdict for plaintiff would not be disturbed, as even if the court should have taken from the jury the questions of malice and probable cause, the result would have been the same.
    (Barnard, P. J., dissents).
    Appeal from judgment in favor of plaintiff, entered uponverdict of a jury.
    Action for malicious prosecution.
    The defendants as legatees under the last will and testament of their father were the owners of certain lands, situate in the village of Westchester, Westchester Co., N. Y. The premises had been ■enclosed and occupied by them and their ancestors for the period ■of fifty years. In March, 1889, the commissioners of highways of the town claimed for the first time that a portion of the lands so •owned and occupied were a part of the public highway, and notice was served to remove the fences and a veranda from a dwelling house in order that the public take possession of the land for street purposes.
    The defendants brought an action to restrain the commissioners in the name of the executors of their father’s estate. Upon the trial of that action his Honor Judge Dykman dismissed the complaint upon the ground that the executors had no such interest in the real estate as would permit them to sustain such an action and the trial o£ the cause did not involve the merits.
    Immediately after the conclusion of that trial, the plaintiff, for the commissioners, without further notice entered upon the premises and proceeded to tear down the fences and a portion of defendants’ house, cutting off the posts, tearing the siding from the building.
    Defendants then brought an action against this plaintiff for damages in trespass and had plaintiff arrested. In the suit, upon the trial of that action before Mr. Justice Barnard and a jury, a verdict was found for the defendant. No judgment was. entered upon that verdict until after the commencement of this action.
    The plaintiff then brought this action which was tried before Mr. Justice Bartlett and a jury at Westchester circuit, December 9, 1891, and resulted in a verdict for the plaintiff for $150.
    
      Seward Baker {J.. W. Bartram, of counsel), for app’lt;
    
      Wm. G. Reddy, for resp’t.
   Pratt, J.

We find no errors in this case prejudicial to the defendant. The verdict cannot be considered excessive.

If it be that the court should have taken from the jury the questions of motive and want of probable cause, the defendant has not been thereby injured, for had the court itself passed upon those questions the result would have been the same, as we think the jury decided them correctly.

Judgment affirmed, with costs.

Dykman, J., concurs.

Barnard, P. J.

(dissenting.)—The plaintiff’s case, assuming the action to be one for malicious prosecution, is this : The defendants own a piece of land along a highway in the town of Westchester. The commissioners of highways tore down the fence along the road with the assistance of plaintiff, who was a workman employed by the commissioner. The lack of probable cause and the express malice is proven by the dismissal of the complaint in an action to restrain the trespass. This action was brought by the executors of defendant’s father, and proves nothing except that, without proof of a title in the executors, they had no right to maintain the action. On the trial of that action, Thomas 0. Arnow swore as follows: “ I did say that the fence and piazza were upon the highway, and that both sides were upon the highway, what people had told me. I stated to John B. Skennion that I would not remove the fence until the people on the other side removed theirs.” The fact is stated to be on information of other people, and not as a fact in any way known to the witness. As against this testimony, the proof establishes that the fence had been along the road for many years. A part of an old house was removed. The highway, for 1,000 feet, including this disputed point, is of varying width. There was no record of the road which is so defined, and precise, as to settle the controversy. A part of the disputed line was an old stone wall, established by actual measurement and location by former commissioners and the then proprietor. The wall had been there some fifty years.

Proof was given tending to show that the piazza destroyed in part was entirely out of the road. All this proof was on the assumption that the wall and fence opposite the defendant’s was on the true line. The fence had stood exactly as it was when torn down for some twenty years, as testified to by the defendant, Thomas C. Arnow. There was no proof that the other defendants knew that it was ever claimed by people that the fence was on the highway. Under all this proof the defendants had a right to go to a jury. The jury decided on an extremely close and doubtful case that the fence was on the highway, and justified its destruction. The case neither shows lack of probable cause or malice.

The judgment and order denying new trial should be reversed, and a new trial granted, costs to abide event.

Judgment affirmed, with costs.  