
    Isabella Coleman, Respondent, v. Llewellyn T. Botsford, Appellant.
    
      Malicious prosecution—action by one who knows that the defendant has a claim against him, in excess of his own—proof of malice is not sufficient—probable came where the facts are undisputed—the question is one for the court—abuse of process.
    
    A person who institutes an action in a Justice’s Court upon a valid claim, against a person whom he knows has a valid claim against him exceeding the amount of his claim, does not thereby render himself liable to an action for malicious prosecution even though he was inspired by a malicious purpose in bringing the action.
    In an action for malicious prosecution both malice and a want of probable cause must be shown; if the facts bearing upon the question of probable cause are undisputed, the question of probable cause is one for the court and not for the jury.
    A recovery had in such a case upon the theoi'y of a malicious prosecution cannot be sustained upon appeal, on the ground that the defendant was- guilty of an abuse of process, it having been shown on the trial that he had brought several actions upon his claim, but had withdrawn them before trial, where no such claim of abuse of-process was alleged in the complaint or was suggested upon the trial.
    Appeal by the defendant, Llewellyn T. Botsford, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St, Lawrence on the 1st day of May, 1903, upon the verdict of a jury for $300, and also from .an order entered in said clerk’s office on the 28th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    This is an action to recover damages for a malicious prosecution. The defendant Botsford had a small bill against the plaintiff Coleman, but he knew that she had a larger bill against him which she could set off against it. He knew that the balance was beyond all doubt in her favor. Nevertheless, he commenced an action against her before a justice of the peace in the town of Potsdam, where he resided, on the 5th day of March, s1902. She resided in the adjoining town of Canton, about nine miles from the place where she was required to attend the trial. The action was adjourned to March twenty-first by consent. Botsford, by attorney, asked for a further adjournment, which request Mrs. Coleman denied. He thereupon discontinued and at once commenced another action; the suznmons returnable March twenty-eighth. Mrs. Coleman then appeared, Bots-ford did not, and the action was dismissed. A third summons was, on the same day, procured from the same justice and served on Mrs. Coleman. It was returnable on Sunday and, therefore, she did not attend in response thereto. Mrs. Coleman thereupon sued Botsford in the town of Canton, where she resided, and the action was ultimately settled by the payment to her by Botsford of fourteen dollars and costs. She thereupon brought this action for malicious prosecution, charging that she suffered damage not only to the extent of the expenses incurred in paying counsel and attending the court, but that she was also, by the wrong and mental distress occasioned by being compelled to so attend, made ill, nervous and unable to work. It appeared that she was upwards of sixty years old, nervous and somewhat feeble, and was obliged to work out as a domestic for her living. The action was tried before the court and a jury and a verdict rendered for the plaintiff of $300. From the judgenent entered thereon, and the order denying a new trial on the minutes, this appeal is taken.
    
      G. S. Ferris, for the appellant.
    
      Lawrence Russell, for the respondent.
   Parker, P. J.:

When the evidence closed upon the trial of this action, it appeared that the defendant Botsford, at the time he commenced the action in Justice’s Court, held against Mrs. Coleman a valid claim of some eleven dollars and twenty-five cents for medical services rendered her, and uppn which he had an undoubted right of action. It also appeared that at the same time she held against Botsford a demand upon which there was due-from him to her some fourteen dollars in addition to his said claim against her. And upon such claim she had an undoubted right of action against him. And beyond all doubt Botsford knew the precise situation of these claims. I assume that it so appeared because it was practically conceded that subsequently when the parties settled at Canton, such claim of eleven dollars and twenty-five cents was allowed to Botsford, and the fourteen dollars which he then paid to her -was the balance 'only remaining due on her note after deducting.the eleven dollars and twenty-five cents therefrom.

Under such circumstances, I am of the opinion that an action brought by Botsford upon his said demand cannot be deemed to have been instituted without probable cause, even though he was aware that if he sued it she could counterclaim her demand and obtain a judgment against him for the balance. The sole action which he prosecuted against her Was to recover for that eleven dollars and twenty-five cents, and concededly he had a right to recover it. There was no doubt nor probability as to his cause of action. It was a just and certain one, and had the action been continued to a judgment it would have been so determined and awarded to him. By prosecuting that action he makes no unjust claim against her. It is true that Mrs. Coleman would setup her claim against him, and So judgment and execution would go in her favor instead of against her; but still he would by the very-judgment so rendered have recovered upon his claim, and so the action which he commenced would result in his favor to the full extent of the claim for which it Was brought.

It may be that a party is inspired by a malicious purpose in bringing an action, yet if he bring it to recover upon a valid claim it is not deemed a malicious prosecution. Both malice and a want of probable cause must Unite to sustain such an action. (Besson v. Southard, 10 N. Y. 236; Anderson v. How, 116 id. 336, 338; 19 Am. & Eng. Ency. of Law [2d ed.], 677.)

There may be valid reasons why a claim should be sued in a Justice’s Court, even though one’s opponent have a lawful demand, as a counterclaim thereto. And a creditor’s right to enforce such a demand will not be restricted, no matter how malicious may be the spirit that inspires the action. Thus, in this case, Botsford’s claim .was nearly outlawed. Mrs. Coleman’s attorney claimed that it was entirely so, and it would be a rank injustice to compel him to abandon such claim or else be charged with malicious prosecution for suing it.

The facts of this case, being conceded to the extent above stated) the question of probable cause became one for the court rather than for the jury (Besson v. Southard, supra), and upon the motion by the defendant for a nonsuit on the ground that the plaintiff had “ failed to show want of probable cause ” and that the evidence shows that this defendant did have a good cause of action ” the complaint should have been dismissed.

Nor can this recovery be sustained upon the ground that the defendant has abused the process of the court to the plaintiff’s injury by suing upon a valid claim, but persistently withdrawing the same before trial. No such claim is set forth in the complaint and no such theory is suggested to the jury. The jury were instructed that in order to render a verdict for the plaintiff they must find a want of probable cause on the defendant’s part to bring the action, and their attention was called to the conceded fact that, in any event, a balance was due from Botsford to Mrs. Coleman.. They were not instructed to determine whether she did or did not owe Botsford his bill of eleven dollars and twenty-five cents for medical services. Throughout the whole charge it is assumed that in their final settlement at Canton credit was given to Botsford for such bill and that the fourteen dollars then paid by him'to her was in addition thereto. It is possibly true that Botsford and his attorney did intend to annoy this old lady by constant service of summons upon her until they could force her to settle as they wished, and the discontinuance of the actions the first and second times may have been deliberately brought about for that purpose ; but, on the other hand, it may have occurred for the reasons which they claimed. It may have been unavoidable on their part. No such issue was sent to the jury and none such has ever been passed upon by them. The recovery has been had solely upon the claim that, without reasonable ground to apprehend a recovery, Botsford prosecuted the action in Justice’s Court against Mrs. Coleman and that he so prosecuted it maliciously. On this ground damages have been awarded against him. But in my judgment the evidence did not warrant submitting such a question to the jury; clearly it does not sustain a claim that such were the facts, and, hence, I conclude that the judgment should be reversed.

This conclusion renders it unnecessary to discuss the further very interesting question which the appellant’s counsel has presented as to whether such an invasion of the plaintiff’s person or property has been shown as is necessary to sustain this action within the rule laid down in Paul v. Fargo (84 App. Div. 9).

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  