
    Siegmund E. Halberstadt, Respondent, v. New York Life Insurance Company, Appellant.
    First Department,
    May 8, 1908.
    Malicious prosecution — defense—termination of prior action.
    The termination of a criminal proceeding brought about by the fraud of the accused, or by compromise, or by acts which prevent a judicial investigation of the charge, is not sufficient to support an action for malicious prosecution.
    It is a good defense to an action for malicious prosecution that the dismissal of the proceedings on which the action is based was due to the fact that before the warrant could be served the plaintiff to avoid trial left the country where it was issued and remained absent therefrom, thereby procuzing the dismissal of the proceedings by lapse of time.
    Appeal by the defendant, the New York Life Insurance Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of November, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to two affirmative defenses contained in the answer.
    
      James H. McIntosh, for the appellant.
    
      Samuel H. Guggmheimer, for the respondent.
   Scott, J.:

The defendant appeals from an interlocutory judgment sustaining a demurrer to separate defenses in the answer.

The action is for malicious prosecution, and the complaint alleges that in 1892, in Mexico, the defendant’s agent, at the request and instigation of the defendant, preferred a criminal charge against the plaintiff in the Criminal Court in the city of Mexico, and that thereupon a warrant was issued for the plaintiff’s arrest. The termination of the proceedings there instituted is thus alleged: On or about the 12th day of November, 1906, by judgment of said Second Criminal Court of the city of Mexico, duly made and entered, the said criminal proceedings for the punishment of said plaintiff were dismissed and extinguished and the said prosecution was thereby wholly determined, and the same was thereby wholly determined and ended in favor of the plaintiff.” The first separate defense demurred to alleges that the extinction and dismissal of the criminal proceedings against plaintiff were due wholly to the fact that at and about the time the warrant was issued, and before it was or could be served upon plaintiff he left the Republic of Mexico, and thereafter continuously remained absent therefrom and by such absence avoided being arrested under such warrant or being tried in such proceedings and by reason of such absence was enabled to procure the dismissal of said proceedings under the law of Mexico on account solely of the lapse of time; that the said criminal proceedings were not dismissed on account of a determination of the case in favor of the plaintiff on a trial thereof on the merits, nor was it dismissed for failure to prosecute said case as above set forth, nor was it dismissed on account of any withdrawal of the complaint, nor for any other reason than by reason of the facts hereinbefore alleged, but any dismissal of the proceedings obtained herein was procured solely on account and by reason of the departure of the plaintiff from the said Republic of Mexico, and his continuance beyond said jurisdiction..

The second defense demurred to reiterates the foregoing allegation and alleges that the departure of the plaintiff from Mexico, and his remaining absent therefrom was for the purpose of avoiding arrest upon said warrant, and avoiding a trial upon said charge, and that he thereby succeeded in avoiding arrest and a trial, and that the dismissal and extinction of said criminal proceedings and the determination thereof in favor of the plaintiff were solely due to the facts that said plaintiff had absconded and continued for such period to be a fugitive from justice and because, by reason of the premises, said plaintiff could not be brought to trial and was never tried in said court to answer to said charge. It is a firmly established rule that an action for malicious prosecution cannot be maintained unless if appears that the prosecution complained of has terminated favorably to the- complainant. Such a termination may be by acquittal, or a dismissal of the charge or by a refusal of the prosecutor to proceed further with the prosecution, and it is generally sufficient to show that the prosecution has terminated, in' any manner, so long as that particular prosecution has so far ended that there can be no further proceeding therein, and no further prosecution for the alleged offense without the commencement of' a new proceeding. There is, however, another rule of law, which as we consider applies to the present case, and 'which sustains the defenses demurred to. That rule is that it is not a sufficient determination of the prosecution to sustain an action- for malicious prosecution, if that determination has been brought about by a fraud on the part of the accused, or by a compromise with his accuser, or if he, by any act or procurement on his part, prevents a judicial investigation of the charge, or procures a dismissal thereof. Thus a nolle ¡proseguí voluntarily entered by the prosecuting officer is a sufficient determination, but not one entered at the solicitation or by the procurement of the person accused. (Langford v. Boston & Albany Railroad, 144 Mass. 431; Lyenberger v. Paul, 40 Ill. App. 516.)' The principle applied in these and like cases is that the discharge or acquittal must be by judicial action, or by the voluntary act of the prosecutor, under such circumstances as will indicate that the party accused had not avoided or prevented a judicial investigation. The defenses attacked by the demurrer set up facts tending tó 'show that the dismissal of the charge against the plaintiff was brought about in such a way that it cannot support an action for malicious prosecution. The defenses are such as must be affirmatively alleged in order to enable the facts to be proven at the trial. The judgment appealed from must be reversed and the demurrer overruled, with costs in this court and the court below, with leave to the respondent to withdraw the demurrer upon payment of said costs within, twenty days.

Ingraham, McLaughlin, Laughlin and Clarke, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to plaintiff to withdraw demurrer on payment of costs.  