
    John Gallagher, App’lt, v. Frederick F. Stoddard, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January 1888 )
    
    1. Malicious Prosecution—Action for damages for—What necessary TO MAINTAIN.
    In order to recover damages for malicious prosecution the plaintiff must allege and prove that the prosecution claimed to have been malicious is terminated and in his favor.
    3. Same—What facts do not constitute a cause of action for
    Where the defendant in such an action had procured the arrest of the plaintiff, upon a criminal complaint and the plaintiff was released from custody upon payment of money, a rec'eipt for all claims being given him by the defendant, which was signed by the defendant, the officer -making the arrest, and to which the officer signed the name of the justice before whom the complaint was made. Held, that termination of the prosecu tian was not such as to enable the plaintiff to maintain the action
    8. Same—Action cannot be maintained when prosecution is com PROMISED UNDER CODE GRIM. Pro., CHAP. 6, TlT. 11.
    
      Held, that such a termination, even if it were admitted to be a com promise by leave of court as provided for by Code Crim Pro chap 6, tit. 11, would not justify an action for malicious prosecution
    
      Charles H. Sedgwick, for app’lt; Mead & Stranahan, for xesp’t.
   Martin, J.

This action was for malicious prosecution. The plaintiff was non-suited upon his opening. The ground of the non-suit was that the prosecution alleged to be malicious was not terminated.

The facts relating to such prosecution as stated, were that the defendant made a criminal complaint to a police justice of Oswego Falls and procured a warrant for the plaintiff’s arrest; that it was delivered to a constable, who went to the city of Syracuse, procured his warrant to be indorsed and arrested the plaintiff thereon; that the plaintiff paid the officer making the arrest nine dollars; that thereupon a receipt was given to the plaintiff for all claims against him by the complainant, the justice and the officer; that this receipt was signed by the defendant and the officer; that the officer also signed the name of the justice thereto, and that the plaintiff was then released from custody.

That a plaintiff must allege and prove that the prosecution claimed to have been malicious is terminated, and terminated in his favor, is too well settled to require discussion or the citation of authorities.

Assuming the facts to be as stated by the plaintiff, and the question is whether the prosecution complained of had terminated in his favor, so as to enable him to maintain this action. If correctly understood the plaintiff’s position is that it is to be presumed that after the plaintiff made such payment and was discharged, the defendant appeared before the magistrate issuing the warrant, acknowledged that he had received satisfaction for his injury, that the magistrate then ordered all proceedings to be stayed on such prosecution and discharged the plaintiff. In other words, the plaintiff claims that the presumption is that the proceeding complained of was terminated by a compromise by leave of the court, as provided for by chapter 6, title 11, Code of Criminal Procedure.

We do not think the presumption contended for arises from the facts stated. If the prosecution had terminated in the manner claimed, the burden of establishing that fact was upon the plaintiff. We think there was no such termination of the prosecution complained of, as would enable the plaintiff to maintain this action. Clark v. Cleveland, 6 Hill, 344; Gano v. Hall, 42 N. Y., 67, 70; Swartwout v. Dickleman, 12 Hun, 358, 359.

Moreover, if it were to be admitted that such prosecution , was terminated by compromise as provided for by the Code of Criminal Procedure, still we would not think such a compromise would constitute such a termination of the prosecution as would justify an action for malicious prosecution.

In Wilkinson v. Howel (1 Moody & Malkin, 495), it was held that an action for malicious arrest could not be maintained where the former cause was terminated by a stet processus, by the consent of the parties. In McCormick v. Sisson (7 Cow., 715), where the defendant obtained a warrant against the plaintiff for theft, who was brought before a justice but discharged because the parties had settled, it was held that this was not such an acquittal as would warrant an action for malicious prosecution. In Sartwell v. Parker (141 Mass., 405), it was held that where one settled a suit against him, by allowing all that was claimed in it, he could not base an action for malicious prosecution on such suit.

We conclude that this action could not be maintained on the facts stated, and that the non-suit granted should be sustained. It, therefore, follows that the judgment appealed from should be affirmed, with costs.

Hardin, P. J., and Follett, J., concur.  