
    General G. Staton, Appellant, v. Isaac Mason, Respondent.
    Second Department,
    May 3, 1907.
    Malicious prosecution—principal and agent — authority of general manager to institute criminal proceeding — probable cause shown by conviction of plaintiff.
    It is within the scope of the authority of a general manager of a business, who acts in the place of the owner, to institute legal proceedings, civil or criminal, for the protection of the owner's property.'
    The fact that a defendant sued for a malicious prosecution in causing the arrest and conviction of the plaintiff, obtained such conviction is evidence of probable cause although the conviction was subsequently reversed. And when in such action there is no proof of malice, and prima fade proof of the existence of probable cause established by the conviction of the plaintiff is not overcome by contrary evidence, a nonsuit should be granted.
    
      Appeal by the plaintiff, General G. Staton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of December, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term.
    
      Alfred G. Cowan, for the appellant.
    
      F. J. Moissen [George Gru with him on the brief], for the respondent.
   Hirschberg, P. J.:

This action is brought to recover damages for malicious prosecution. The plaintiff had purchased from the defendant, in the borough of Brooklyn, to be used at his plac'e of residence in that borough, certain furniture, to-be paid for at stated intervals in small installments, and had given to the defendant a chattel mortgage on the property purchased, in order to secure the payments. Before the purchase money was all paid, the plaintiff shipped the prop- ' ert-y to North Carolina, and, on learning that fact-, the credit clerk of- the defendant instituted proceedings in the Court of Special Sessions in the defendant’s behalf, by virtue of which . the plaintiff' was arrested, tried 'and convicted of the misdemeanor of unlawfully secreting or disposing of mortgaged, property in violation-of section 571 -of the Penal' Code. On appeal, the judgment of conviction■ was reversed by this court (People v. Staton, 79 App. Div. 634), the chief ground of reversal being the absence of proof .of a criminal intent on the part of the accused. After the reversal the pro- ■ céedings in the Court of, Special Sessions were dismissed, and the plaintiff discharged. This action was thereupon brought.

The plaintiff recovered á judgment on the first trial of this action, which was reversed by this court (Staton v. Mason, 106 App. Div. 26) on the ground that there was no evidence tending to show that the credit clerk, who instituted the criminal proceeding, had either express or" implied authority from the defendant to do so. . The precise nature of his duties as credit clerk was not disclosed, and there was accordingly nothing to indicate that bis act was within tlie scope of his employment. On this, the second trial, it distinctly appears that the prosecution and arrest were directed by the defendant’s manager, who was at the time in charge of the defendant’s business. The evidence tends to establish that the defendant was seldom personally at his place of business, but that such business was conducted and managed entirely by the manager, who acted and was regarded by the employees as the head of the concern. The jury could infer from all the evidence that it was within the scope of the manager’s employment to take steps, either civilly or criminally, in the protection of the defendant’s property and in the preservation of his rights and interests. The authority conferred upon the credit clerk by the manager was not disputed, and the criminal proceedings were conducted by the defendant’s general counsel. ■ There was sufficient in the case to support a finding that the act of the credit clerk was binding upon the defendant.

The case, is different from that presented in Mali v. Lord (39 N. Y. 381). In that case the defendant’s superintendent, on mere suspicion, caused the plaintiff to be detained and searched. This could not have been done lawfully by the defendant in person, and it will never be assumed that authority lias'been conferred upon a, subordinate to do that which the master himself could not "lawfully do. But in this case the defendant with probable cause would be justified in instituting legal proceedings, even of a criminal nature,, and that which he could do might lawfully be delegated to an employee.

Nevertheless the nonsuit' was properly granted. The hearing and trial which resulted in the plaintiffs conviction appear to have been fairly conducted, and there is no claim or pretense that the result was procured by fraud, conspiracy, subornation or other undue means. It seems to be well settled in this State that a judgment of conviction so obtained, although subsequently reversed, is prima facie evidence of probable cause in an action for malicious prosecution. (Miller v. Deere, 2 Abb. Pr. 1; Palmer v. Avery, 41 Barb. 290; Nicholson v. Sternberg, 61 App. Div. 51; Burt v. Smith, 181 N. Y. 1.) There is not a suggestion of malice in the case, and the evidence being sufficient to establish implied authority from the defendant to institute the criminal proceedings, and the prima facie proof of the existence of probable cause as established by the conviction not having been overcome by any evidence offered 'by the plaintiff, it necessarily follows that the cause of action asserted by the plaintiff was not'proven..

'The judgment should be affirmed.

Woodward, Hooker, Rich and Miller, ÍJ¿, concurred. •

Judgment affirmed, with costs, x  