
    Marie Dobbs, Respondent, v. Interborough Rapid Transit Company, Appellant.
    Second Department,
    July 25, 1913.
    Malicious prosecution—evidence — probable cause.
    In an action for malicious prosecution it appeared that the plaintiff dropped her ticket and five cents in the box in defendant’s station; that she requested the agent to pay her that sum; that he explained he could not do so but would give her a receipt for the money presentable at the main office; that she took five cents from the window and was pursued by the agent and seized and taken by a police officer before a magistrate, by whom she was held for trial and later found not guilty.
    Evidence examined,' and held, to establish probable cause, and that a judgment in favor of the plaintiff should be reversed.
    Appeal by the defendant, the Interborough Rapid Transit Company, from a judgment of the Supreme Court infavor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of January, 1913, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the'same day, denying defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames [John Montgomery and James L. Quackenbush with him on the brief], for the appellant.
    
      Burt L. Rich [Alvan R. Johnson with him on the brief], for the respondent.
   Thomas, J.:

The recovery of $3,500 is for malicious prosecution. The plaintiff dropped her ticket and five cents in the box on defendant’s station and thereupon requested the agent to pay her that sum. He explained that he could not do so, but that he would give her a receipt for the money, presentable at the main office. She urged her request and finally took a nickel from the window and was at once pursued by the agent, seized, and later taken by a police officer before a magistrate, by whom she was held for trial before the Court of Special Sessions, where she was found not guilty. So upon examination the magistrate decided that there was “ sufficient cause to believe the defendant guilty” (Code Crim. Proc. § 208), and the jury in this action has decided that defendant’s agent had not “sufficient cause to believe the defendant guilty.” There is a distinct reason for the decision of the magistrate, and the opposite decision by the Court of Special Sessions. Before the magistrate the accused testified that a lady “put in her fare and he threw out money like this (indicating), and I thought, ‘that is for me; I will take it;’ and he said, ‘ that is not for you,’ ” and she reached for it and did not get it; the lady got it, and plaintiff finally answered, “ I never got a taste of the nickel, never had it in my hand.” Her testimony before the magistrate was not proven before the Court of Special Sessions, and upon the trial of the present action the plaintiff disclaimed such evidence, although it was conceded that she gave it. But here she testified that the agent put out the nickel, that she took it and thought he gave it to her. In one court she denied'any taking and asserted that he informed her that it was not for her. Surely if she was informed and yet took it, that alone proved probable cause. But now she would prove absence of probable cause by showing that she took by invitation. Did the agent have reasonable grounds to believe that she took the coin with intention to steal it? The magistrate’s decision is to that effect, and to him was given the initial power to determine. What, then, is the relative probative force of her present testimony? What is the value of the agent’s testimony measured against that of the plaintiff ? It cannot be doubted that his testimony, fortified by the decision of the magistrate based on her uncredited denial that she took the money and her statement that she was told not to do so, preponderatingly shows that there was probable cause. The agent did not testify that he said to her that the change was not for her. But she understood as much from the transaction or from what he said.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Stapleton and Putnam, JJ., concurred.

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