
    HANKINSON a. GILES.
    
      Supreme Court, First District;
    
    
      General Term, March, 1864.
    Malicious Prosecution.—Probable Cause.—Construction on Stipulation.—Identification of Papers.—Evidence.
    In an action for malicious prosecution, a stipulation identifying certain affidavits as the originals upon which a warrant for the arrest of the plaintiff was issued, and admitting that the plaintiff was arrested upon such warrant, does not authorize the defendant to read such affidavits in evidence.
    
      
      So held, where the stipulation, though produced on the trial by plaintiff, was signed by the defendant’s attorney only.
    if or is the case altered by plaintiff s first reading in evidence, under such stipulation, defendant’s affidavit, made before the magistrate.
    Exceptions heard at general term in the first instance.
    This action was brought by Samuel Hankinson against Wiliam M. Giles, to recover $5,000 damages for an alleged malicious prosecution. The defendant caused the plaintiff to be brought before a police magistrate, on a charge of libel, in publishing and circulating a scurrilous poem, entitled “ Misther Giles.”- The magistrate required bail, to answer an indictment: the plaintiff was indicted, but was acquitted upon his trial. On the trial of the present action, during the direct examination of the plaintiff, his counsel read in evidence the affidavit of Giles, made before the police magistrate, and a copy of the libel annexed to it. The case stated that these papers were read under the following stipulation, which was signed only by defendant’s attorney:
    It is mutually admitted that the affidavits and papers marked “ R. K., January 20th, 1862,” are the affidavits and papers upon which Richard Kelly, Esq., then being a police magistrate of the city of Hew York, issued a warrant for the arrest of the plaintiff in this action, and that by virtue of such warrant the said plaintiff was arrested by officer Scott and brought before said magistrate. That an examination was had before such magistrate upon the matters and things embraced in such papers, which examination is annexed to said papers.
    It is further admitted that the said Kelly will testify, that after such examination the said plaintiff was ordered to find bail in the sum of $500 to answer the said matters, and did find such bail, and that after diligent search the original warrant cannot be found.
    During the cross-examination of the plaintiff, he testified:
    
      Q. When you went down to Jefferson Market "(the police court), was a Mr. Angier there ? A. He was, I think.
    
      Q. He made his statement to the magistrate ? A. I believe he made a statement; I never heard his statement.
    
      
      Q. He was there at the time you were taken down to Jefferson Market? A. Yes, sir, he was there.
    
      Q. He and Giles ? A. Yes, sir.
    
      Q. You know this Angier? A. Yes, sir; I think I know him when I see him.
    
      Q. He was a witness; he made an affidavit before Judge Kelly at the time ? A. I don’t know.
    
      Q. You know he was there, making a statement with Giles ? A. I saw him there ; I don’t know whether he made a statement or not; I cannot say; he did not make it in my presence.
    Defendant’s counsel here offered to read the affidavit of Calvin Angier.
    Objected to; objection overruled and exception taken.
    The affidavit was then read, as follows :
    “ That Tuesday night, September 27th, 1859, at about half-past 8 o’clock, he was going to his-residence, Ho. 63 West 13th-street, and when directly opposite his house in said I3th-street, he saw a man stooping down at his (deponent’s) front door, as if putting something under the door; that said man, whom deponent identified to be a Dr. Hankinson, who resides within a few houses on the same side of the street with deponent, then came down the said stoop and went towards his own house, and disappeared; that deponent then went into Macy’s store on the corner of 13th-street and 6th Avenue, as said Hankinson’s house adjoins Macy’s on the street, as deponent supposed that he had gone into -said store, but said Hankinson was not there.
    “ Deponent further says, that soon after he went to his house, and upon opening his front door, he found-there a yellow (sealed) envelope without any address; that upon breaking the seal he found said envelope to contain some printed rhymes of an obscene and disgusting character, called ‘ Misther Giles/ a Poem by Somebody ; respectfully dedicated to the New York Apothecary, corner of Idth-street and 6th Avenue f that said envelope-contained two copies- of said rhymes, one of which he gave to Mr. Giles, and which copy is now annexed to Mr. Giles’ affidavit. “CALVIN ANGIER.
    “ Sworn to before me, September 29,1859.
    “ Ric’d Kelly, Police Justice.
    
    “ Marked ' R. R.,’ January 20th, 1862.”
    
      At the close of plaintiff’s case, defendant moved to dismiss the complaint, on the ground that plaintiff had not shown want of probable cause. The motion was granted, and plaintiff excepted ; the court (Mr. Justice Balcom) directed that the exceptions be heard at the general term in the first instance.
    
      William R. Stafford, for the plaintiff.
    The court erred in assuming that there was no dispute as to the facts tending to show probable cause. While the rule is admitted that the court is to determine what facts amount to probable cause, and so instruct the jury, still, if there is any question as to those facts, it must be submitted to the jury. (Bulkeley a. Keteltas, 10 N. Y. (6 Seld.), 384; Garrison a. Pearce, 3 E. D. Smith, 255.)
    II. The fact that the defendant shortly after the arrest, but before the indictment, was informed- of his mistake, and then declared “ that he did not care; that he was bound to break the plaintiff up, and have him out of the city,” was not only evidence of malice, but sufficient to sustain a verdict that the party uttering it did not have that reasonable belief in the plaintiff’s guilt which justified the prosecution. (Weaver a. Townsend, 14 Wend., 192.)
    III. The affidavit of Angier was made after the arrest, and is incompetent as evidence in this case. Though controverted, it could have no greater effect than the declarations of any third party, and as such, was improperly received. Admitting it, however, would not justify the assumption that its statements were true in the face of the evidence contradicting it. (Burt a. Place, 4 Wend., 591.)
    IY. Until, therefore, the defendant had explained the proof tending to show that he did not act upon “ a reasonable suspicion founded on circumstances warranting a cautious man in the belief” that the plaintiff was guilty of the offence charged (Foshay a. Ferguson, 2 Den., 617), it was error to take the case from the jury, and the nonsuit should be set aside.
    
      John Graham, for the defendant.
    I. The judge at the trial ruled correctly in allowing the affidavit of Angier, taken before Justice Kelly, to be read in evidence. 1. It was one of the affidavits on which the justice issued his warrant, and went to the question of prohable cause. One of the important inquiries was, the basis or ground of complaint as urged or presented to the justice. 2. The affidavit was a part of a record from which the plaintiff had already read—namely, in introducing the affidavit of the present defendant, made at the same time, and on the same occasion. 3. It was offered on the cross-examination of the plaintiff, after the defendant’s affidavit had been introduced on his direct.
    II. The judge, at the trial, acted correctly in dismissing the complaint. 1. The question of probable cause, where the facts are undisputed, as they were in this case for the purposes of the motion to dismiss the complaint, is one of law for the court, and was, in this case, properly decided. (Besson a. Southard, 10 N. Y. (6 Seld.), 236; Bulkeley a. Keteltas 6 N. Y. (2 Seld.), 384.) 2. If there was probable cause for starting the prosecution, its ultimate failure did not remove the difficulty out of the way of the plaintiff’s action. There was clearly such cause in the affidavit of Angier alone. (Burlingame a. Burlingame, 8 Cow., 141; Murray a. Long, 1 Wend., 140.) 3. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offence with which he is charged. (Foshay a. Ferguson, 2 Den., 617.) 4. The verdict of the jury in favor of the plaintiff, on the trial of the indictment for libel, would not destroy the existence of probable cause, if it existed when the prosecution was started. The jury performed their duty by a different standard from that which governed before the inquiring magistrate. Before him, doubts weighed against the plaintiff. Before the jury, doubts belonged to him. (2 Rev. Stat., 709, § 21.) 5. The jury impannelled to try the indictment against the plaintiff, retired and deliberated before they acquitted him. (2 Stark. on Slander, 79, m.)
   By the Court.—Sutherland, J.

—It does not require any argument or authority to show that, independent of the stipulation on page 8 of the case, it was error to permit Calvin Angler’s affidavit to be read in evidence for the defendant under objection.

In my opinion, the stipulation signed hy the attorney for the defendant only, did not authorize him to read Angier’s affidavit in evidence.

Had the stipulation been signed by the attorney for the plaintiff also, I do not think it would have authorized- the defendant to read it in evidence, although it might have authorized its production and identification as one of the affidavits or papers upon which Kelly, the magistrate, issued a warrant for the arrest of the plaintiff. The inference from the case on page 8, perhaps is, that the plaintiff produced the stipulation and read the defendant’s affidavit in evidence; and if he did, in my opinion this did not authorize the defendant to read Angier’s affidavit in evidence, as evidence of the facts stated therein.

It is plain, that the reading of Angier’s affidavit'in evidence might materially have injured the plaintiff.

I think the order dismissing the complaint should be reversed, and a new trial ordered, with costs to abide the event.

Leonard, J.

I concur. The stipulation gave the defendant no authority to read any affidavit. Nor did the reading of Giles’ affidavit by the plaintiff authorize the reading by defendant of another sworn by Angier, although annexed to the former, and forming part of the naners on which the magistrate issued his warrant.

Clerk®, J., concurred.  