
    SUPREME COURT—APP. DIV.—SECOND DEPT.,
    June 4, 1909.
    CARL A. SPILKER v. PAUL M. ABRAHAMS.
    (133 App. Div. 226.)
    (1). Malicious Prosecution—Probable Cause.
    Where in an action for malicious prosecution it appears that plaintiff, whose arrest on the charge of forgery, third degree, defendant had procured, and who had subsequently been discharged, was the treasurer of a corporation of which the defendant was secretary; that upon an increase in the amount of the stock of said corporation plaintiff canceled his old certificate, pasted it in the stock book and received a new certificate for an increased number of shares filled out by ’ the defendant; that being advised that the issue of increased stock to him, being without consideration, was illegal, he returned his new certificate to the stock book and took out the old one, and that all was done openly and without concealment, the question as to whether defendant had probable cause to believe the plaintiff guilty of the crime of falsifying and unlawfully altering the records of the corporation is properly left to the jury.
    ¡(2). Same—Penal Code, Seo. 515.
    A book or record is falsified, within the meaning of section 514 of the Penal Code, when by some alteration, made with a fraudulent and corrupt intent, it is given a different effect in some material way than it had before.
    (3). Same—Trial—“Malice.”
    The jury in 'such case is' justified in finding malice where there is evidence that the defendant said he “ was after ” plaintiff; that he had plaintiff arrested pending a motion for a new trial in a civil action between them, and that the defendant’s counsel, while the criminal action was pending, in defendant’s presence, asked plaintiff’s counsel why their clients should not get together and settle all their disputes and drop the criminal prosecution.
    Appeal by the defendant, Paul M. Abrahams, from a judgment of the Supreme Court in fa.vor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of December, 1908, upon, the' verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the Gth day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Joel Krone, for the appellant.
    
      Allan Q. Rowe, for the respondent.
   Burr, J.:

This is an action for malicious prosecution. It was conceded that the defendant procured the arrest of the plaintiff upon a charge of forgery in the third degree; and that, after an examination before the magistrate, the proceedings were, terminated by his discharge. The only questions remaining; therefore, were those of want of probable cause and malice. In April, 1907, plaintiff was the treasurer of a corporation known as the Structural Concrete Company. One Charles F. Varney was the president, and the defendant, who is a lawyer, was the secretary of the same company. The company had assumed the performance of some uncompleted contracts of a bankrupt corporation called George A. Varney & Company, of which the defendant was also the receiver. In February, 1907, the capital stock of the Structural Concrete Company was $25,000, of which the plaintiff held 63 shares. Shortly thereafter he signed a consent to the increase of the capital stock to $100,000, which had been prepared by the defendant. In April, 1907, a new certificate of stock was filled out by the defendant in the name of the plaintiff for 170 shares. It was signed by the president of the company and afterwards by the plaintiff as treasurer, who then took the new certificate of stock cut of the stock book and indorsed upon the old certificate for 63 shares the word “Canceled,” and pasted in into the same beck. About the same time Charles F. Varney, the president of the ■ company, received a new certificate of stock for 250 shares under similar circumstances. Very shortly thereafter, and during the same month, the plaintiff was advised by his counsel that the issue of stock to him for 170 shares was illegal, since there was no consideration for it, and he thereupon returned this certificate to the stock book and removed from it the former certificate for 63 shares which had been marked “Canceled” and pasted into it. He did this after consultation with the president of the company, who, at the same time, returned the certificate for 250 shares which he had received. 'The act of the plaintiff was openly done and there was apparently no effort to conceal from any one exactly what the transaction was. In June, 1907, the plaintiff was examined by the defendant in the bankruptcy proceedings of George A. Varney & Company, and all of these facts were testified to by him freely and without attempt at concealment. On the 4th of June, 1907, an action was commenced in the Supreme Court in Richmond county by Abrahams, the defendant here, against S'pillcer, the plaintiff here. It does not appear what the nature of that action was, but it was tried on January 22, 1908, and resulted in a verdict for Abrahams against Spilker for the sum of $5,700. A motion was made for a new trial, which manifestly involved questions of importance, for the trial judge announced that he would reserve decision upon the motion until a copy of the stenographer’s minutes could be obtained, when briefs were to be submitted. Just three days afterward, and while the motion was pending, the defendant here procured plaintiff’s arrest upon the charge of forgery in altering and destroying the books of record of the Structural Concrete Company. The defendant now claims that the trial court erred in submitting to the jury the question whether he had probable cause to believe that the plaintiff had been guilty of the crime with which he was charged. If this was errer, it was not error prejudicial to the defendant. We think the court would have been justified in instructing the jury that there was no probable •cause. The provision of the statute is as follows: “A person who either, 1. Being an officer or in the employment of a corporation, * * * falsifies, or unlawfully and corruptly alters * * * or destroys any * * * records, or other writing, belonging to or appertaining to the business o± the corporation * * * Is guilty of forgery in the third degree.” Penal Code, § 514. But every change in a book or paper of a corporation, although in a sense it may falsify it, is not necessarily a forgery. If so, the bookkeeper avIio erases an erroneous entry in the ledger, that a correct entry may take its place, or the clerk who inadvertently tears a leaf from the letter book, might become a felon. A book or record is- falsified within the meaning of this statute only when by some alteration therein it is made to speak differently from what it did previously, or given a different effect in some material aspect with a fraudulent and corrupt intent. People v. Underhill, 142 N. Y. 38. There is not the least suggestion of any corrupt or fraudulent purpose in plaintiff’s conduct. Plaintiff may have been mistaken as to his legal rights, but he no more committed the crime of forgery than a man would commit the crime of burglary who under a mistaken notion of his right to do so took another’s horse from the stable, leaving his own in its place, and when he discovered his mistake returned the horse and resumed possession of his own, even though he opened the outer door of the building in order to do this. The defendant claims that the plaintiff’s acts were with a view of defeating any possible claim which the corporation might have' had against him for the amount unpaid on the new stock which was issued to and received by him. There is no evidence that plaintiff had ever subscribed for any additional stock or agreed to purchase the same, and if he had, so that the company had an enforcible claim against him, that claim would hardly be affected by his return of the new certificate and the removal of the old, particularly when all of the facts in respect to the same were known to all of the officers of the corporation. But, to put it most favorably for the defendant, different inferences-might be drawn from the undisputed facts in the case as to the existence of probable cause. If so, it was a question of fact for the jury. Heyne v. Blair, 62 N. Y. 19; Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321. Defendant claims also that there was no evidence of malice. We think that there was evidence from which the jury would have been justified in finding actual ill-will. The defendant had stated that he “was after Mr. Spilker.” Although all of the facts were known to defendant in June, 1907, which were known when he started the criminal proceeding, he delayed proceeding until January, 1908, when the motion for a new trial in the Richmond county action was pending. Defendant claims that he consulted the district attorney shortly after the examination in June, 1907; and he advised him to do nothing in the matter of a criminal proceeding until the civil action was disposed of. Apparently he did not heed that advice, but at a critical juncture in the civil action instituted this proceeding. There was evidence from which the jury might have found that, while the criminal proceeding was pending, the counsel for Abrahams said in his presence to Spilker’s counsel, “Why should not the people get together and adjust all their difficulties and drop this?” (the criminal proceeding). Although the defendant denies being present at a conversation in which words of somewhat similar import were used, he does not deny that something was said on the subject, and the counsel to whom the- words were attributed,' although present in court, made no denial of them. There were no exceptions taken to rulings upon questions of evidence, nor to the charge, which merit consideration.

The verdict was not excessive under the circumstances, and the judgment and the order denying the motion for a new trial should be affirmed, with costs.

Woodward, Jeuks, Gayhor and Miller, JJ., concurred.

Judgment and order affirmed, with costs.  