
    Lena Malich, Respondent, v. Hyman I. Josephson, Appellant.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Malicious prosecution—Want of probable cause: Trial—Questions of law and fact — Probable cause.
    In an action for malicious prosecution, the facts being undisputed, the question of probable cause is for the court; and, if the facts are disputed, the responsibility still rests upon the court of determining whether the facts as found by the jury amount to probable cause.
    Where in an action for malicious prosecution it appears that there had been a burglary in defendant’s shop; that a portion of thé stolen goods had been traced to the plaintiff’s brother who was trying to sell them; that he had obtained them from the plaintiff who gave a most unsatisfactory explanation as to where she obtained them; and where defendant on cross-examination testifies that when he caused plaintiff’s arrest he did not believe her guilty, but his examination taken as a whole discloses an undoubted belief in the plaintiff’s guilt, as well as reasonable cause for entertaining suchx belief, there is ample proof of probable cause for charging the plaintiff with the crime of which the defendant accused her.
    Appeal by the defendant from a judgment in favor ,of the plaintiff entered in the City Court of the city of New York, after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial.
    Abraham H. Sarasohn, for appellant.
    Henry Kuntz, for respondent-
   Scott, J.

It is well settled that, in an action for malicious prosecution, the burden is upon the plaintiff of showing want of probable cause on the part of the defendant and that, where there is no dispute as to the facts, the question as to the existence of probable cause is one for the court. Anderson v. How, 116 N. Y. 336; Thaule v. Krekeler, 81 id. 428. If there be a dispute as to the facts, it is for the jury to determine what the true facts are, the responsibility still resting upon the court of determining whether the facts as found amount to probable cause. Fagnan v. Knox, 66 N. Y. 527. The charge of the court is not included in the record before us and we have, therefore, no means of determining what instructions were given to the jury or what questions of fact were submitted for their determination. This is, however, unimportant because, upon the undisputed facts', there was ample proof of probable cause for charging the plaintiff with the crime of which defendant accused her. There had been a burglary in defendant’s shop; a portion of the stolen goods were traced to the possession of plaintiff’s brother who was trying to sell them; he had obtained them from his sister; when interrogated as to where she obtained them she gave a most unsatisfactory explanation. It is well settled that the possession by any person of property recently stolen, without a satisfactory explanation, raises a presumption of guilt. People v. Weldon, 111 N. Y. 569. The only argument offered in support of the judgment is drawn from one or two answers made by defendant on cross-examination to the effect that he did not, when he caused plaintiff’s arrest, believe her to be guilty. Of course, a belief in the guilt of a person accused is as essential as the existence of reasonable cause for the belief; but the defendant’s frame of mind upon the subject of plaintiff’s guilt is not to be determined by his answer to a single question, perhaps not perfectly understood, when the examination taken as a whole discloses an undoubted belief in the plaintiff’s guilt, as well as reasonable cause for entertaining such belief.

The judgment must be reversed and a new trial granted with costs to appellant to abide the event.

Tbttax and Bischoee, JJ., concur.

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