
    (73 Hun, 547.)
    ATWOOD v. BEIRNE.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    Malicious Prosecution—Termination of Proceeding.
    In an action for malicious' prosecution it appeared that defendant had made a complaint against plaintiff for larceny, and two cross complaints of assault and battery had been made. One of the assault cases was tried three times before a verdict was reached, and the parties, their counsel, and the justice, being tired of the proceeding, agreed that the parties should be absent from court on the day to which the proceedings were adjourned, and each complaint thus fell for want of prosecution. Held not such a termination of proceedings as would sustain an action for malicious prosecution.
    Appeal from circuit court, Orange county.
    Action by Thomas Atwood against Edward C. Beirne for malicious prosecution. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.
    Reversed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    John W. Lyon, for appellant.
    Wilton Bennet, for respondent.
   PRATT, J.

Appellant urges that the court below erred in refusing to dismiss the complaint for failure to prove want of probable cause. The defendant testified that $10 had been stolen from his office, and that no one was present at the office when the money was taken but the plaintiff and his wife. The court said that if a theft had been in fact committed, then there was probable cause for the prosecution. We think that was as far as the trial judge could go in that direction. Plaintiff denied having taken the money, and the question whether a theft had been committed was practically left to the jury with the instruction that, if there had in fact been a theft, probable cause was shown. We think this was the proper course. Nor was any error committed in the "charge as to smart money. Under the charge the jury were not allowed to find a verdict for plaintiff unless they found that no theft had been committed, and that the charge was made maliciously. Where a complaint is made under such circumstances, smart money might well be given.

It is also urged that the prosecution was not so terminated in plaintiff’s favor as to afford the proper foundation for this action, and this objection appears to be well founded. There were two cross complaints of assault and battery and one complaint for larceny. One of the assault cases was tried three times before a verdict was reached, and by that time the parties, their counsel, and the justice were all tired of the matter, and were equally eager to end the proceedings. It was arranged by counsel that the complainants should respectively be absent from court upon the days to which the proceedings were adjourned, and each complaint thus fell for want of prosecution. That disposition of the matter was judicious, and creditable to all concerned, but it was not such a termination of the prosecution as would sustain an action. In principle it was a compromise or an abandonment of the proceeding by mutual consent, and no real determination has been had. On that ground the plaintiff’s case fails. There must be a reversal of the judgment, and a new trial; costs to abide the event. All concur.  