
    Edwin A. Witham, App'lt, v. Wm. Claiborne Thomas et al., Resp'ts. George H. Kendall, App'lt, v. James W. Monk and Wm. Claiborne Thomas, Resp'ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Malicious prosecution—Probable cause—Trespass.
    K. was the owner of premises adjoining property of which T.’s wife was in charge, and separated therefrom by a fence six feet high, which was down for ah rat 100 feet. His employe, W., cut down five trees on the adjoining land at this point. On being remonstrated with,K. apologized, and claimed it was a mistake, but subsequently other trees were cut, in reality, to give K. a better view. K. refusing to make any reparation, M., as attorney for the owner, brought suit for trespass, and had K. and W. arrested on a charge of wilful injury to property, but they were discharged. Held, that there was probable cause for the proceeding, and that malice not being shown, a nonsuit was proper.
    Appeals from judgments dismissing the complaints in both actions.
    Actions for malicious prosecution.
    Mrs. Athenais Yon Hoffmann owned a country seat on Grymes Hill, Staten Island, called “ Crow’s Nest,” and the plaintiff, Kendall, owned the adjoining place on the south. Between the two places, and dividing them, there was a close board fence seven feet high, running east and west from Howard avenue or the Serpentine Eoad on the west, to the Eichmond Eoad on the east.
    Mrs. Yon Hoffmann was absent in Europe, and had placed her niece, Mrs. Thomas, in the possession of Crow’s Nest.
    In December, 1890, Mrs. Thomas discovered that five trees had been cut upon Crow's Nest, and was informed by the plaintiff Witham, who was the workman of the plaintiff Kendall, that he had cut them by the direction of Kendall. She warned Witham not to cut any more, and on December 12, wrote Kendall a note complaining of the cutting. To this note Kendall replied, apologizing for the acts of his man. On December 15th Mix Thomas wrote Kendall another note accepting his apology, and on December 15th, Kendall wrote Mrs. Thomas another note reiterating his apologies.
    On December 18th or 19th Kendall called upon Mrs. Thomas and stated to her “that he was the guilty one—that he cut down the five trees, or had his man cut them for him, to gain a view of the Brooklyn Bridge; and he also said that he. required four more to get that view, and he asked my permission, and I objected. His answer was, ‘ that settles it. ’ ”
    Mrs. Thomas was subsequently informed that four more trees had been out, and on Christmas day walked over to the fence line and there found four more trees down, and nine in all. Some days later she found three more down, making twelve in all. Subsequently she informed Mr. Von Hoffmann, the husband of Mrs. Von Hoffmann, of the facts and of the correspondence between herself and Kendall. Mr. Von Hoffmann advised with the defendant Monk, who had been his counsel for years, as to the rights and remedies of Mrs. Von Hoffmann in the premises, communicating to him the facts above stated.
    Mr. Monk advised him that Kendall was liable in a civil action for damages, and that he and his man, the plaintiff, Witham, were also liable to indictment as for a misdemeanor, and to fine and imprisonment upon conviction. Mr. Monk also advised Mr. Von Hoffman that the criminal prosecution would have to be conducted by the district attorney.
    Mr. Von Hoffmann, being on the eve of his departure for Europe, instructed Mr. Monk to institute any and all actions necessary to restrain a continuance of the acts complained of, and to recover the damages suffered, and also instructed him to lay the matter before the district attorney for criminal prosecution.
    Mr. Monk suggested to Mr. Von Hoffmann that perhaps he had better call upon Kendall and see what he had to say about the matter, and that perhaps all legal proceedings could be avoided. To this Mr. Von Hoffmann assented, and Mr. Monk called upon Kendall, and had an interview which was of the most friendly character, and without a shadow of suspicion of any bad faith upon the part of Kendall. Mr. Monk wrote Kendall a letter offering to settle the matter for $750, to which Kendall replied refusing the offer.
    In view of Kendall’s letter Mr. Monk brought suit against Kendall for the. damages suffered by his client, and laid the matter before the district attorney for his action, with view to prevent a continuance of these trespasses. He stated the whole case to the district attorney, including the correspondence between Mrs. Thomas and Kendall, the two letters between Kendall and himself and the information conveyed to him by the several witnesses.
    The district attorney advised Mr. Monk that the offense was not a misdemeanor, but a felony, and came under the provisions of § 654 of the Penal Code, and prepared a complaint against Kendall and Witham, and directed Mr. Monk to have the same sworn to before Justice Acker by some one acquainted with the facts, and when they were arrested he would attend and prosecute.
    Kendall and Witham were arrested and taken before Justice Acker, who paroled them pending examination, which was set down for March 21, on which day, after the examination of several witnesses, it was adjourned to April 4, and again to April 6, on which day he discharged Kendall and Witham. Upon the first day the district attorney appeared for the prosecution, hut failed to appear on the adjourned day and the case proceeded without him.
    The complaint was for cutting the five trees which had been discovered at the time of the correspondence between Mrs. Thomas and Kendall.
    Upon the conclusion of the testimony Justice Acker reserved his decision until April 6, in order that he might read over the testimony; and on that day, discharged the defendants. These actions were, thereupon, brought for malicious prosecution. At the close of the evidence the court directed a verdict for defendants in each case, expressing himself as follows;
    The Court: Four things must concur to make out this action. An omission to prove anyone of the four would be fatal: 1, there must be an arrest; 2, there must be a discharge; 8, there must be proof of actual malice; and, 4, there must be a lack of probable cause.
    The freedom of law, criminally and civilly, is carefully guarded by these four propositions. Two of them are proven here beyond question. The. plaintiff was arrested, and he was discharged. You are to prove malice; not presumptive, but actual malice. And you may prove the most absolute malice. You may prove to make a complaint to blast a man’s reputation because you hate him. You may make it just as strong as you please. It is only a step in the action, because the law permits the most malignant man to present to the court a case if he have a probable cause.
    Now, you have got down to the last of the four, and to me it is a case that rather astonishes me that the justice should discharge. Here is a lady with a piece of property guarded by a fence; perhaps it may be down, and an adjoining owner directs his •workman to cut a vista through there, fifty feet wide to the extent of twelve or fifteen trees, more or less. Now you may say he made a mistake; you may say anything. But that the owner had the right to lay that case before a judge or jury is so plain that nobody can doubt it She says, “ My trees have been cut.” They admit it. “ They have been cut over my line. There was a line fence there.” They say, “Yes; that is so, but I owned some land somewhere about there, around the corner.”
    I do not say anything as to where the merits are; that may be true; but this lady that owns the land had the right to present her case before this justice, and the justice decided against her. And are the lawyers and the prosecutor, the district attorney, the several attorneys, all to be made liable when a jury fails to agree with them, or a magistrate fails to agree with them, or a grand jury refuses to find a bill that they present ? No. This case is not made out, and a verdict is ordered for the defendant upon the evidence as it stands.
    
      Jas. M. Runt, for app’lts ;
    
      Geo. J. Greenfield and Jas. W. Monk, for resp’ts.
   Pratt, J.

We are not able to find any evidence from which the jury could properly say that the prosecution before the justice of the peace was malicious, or that it was without probable cause. On the contrary, we are disposed to share the surprise expressed by the circuit judge, that the accused- persons were not held for trial.

Where a fence six feet high is standing along a boundary line, the fact that gaps existed in some places would scarcely explain how a careful man could so far trespass upon his neighbor’s land as was done in this case. It is not surprising that the criminal charge was made, for there was, apparently, a reasonable ground to sustain it.

Malice not being shown, and probable cause existing, the non-suit was rightly granted.

Judgments affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  