
    William E. Davenport, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    March 20, 1912.
    Malicious prosecution—arrest for theft from freight car — probable cause—evidence—investigation by detective after charge of theft.
    A detective employed by a railroad company to prosecute persons stealing from freight cars had probable cause as a matter of law to cause the arrest and prosecution of a brakeman for theft where, without improper motive or malicious intent, he acted on sworn statements made by other persons who, having- admitted that they were guilty of theft, charged in swOrn statements that the brakeman prosecuted was also guilty of specific larcenies.
    In an action against the railroad for malicious prosecution following such arrest, it is error for the court to refuse to allow the railroad detective to testify as to the investigation he made with reference to other larcenies when acting on the information received from the persons who confessed their guilt.
    Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of May, 1911, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 20th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Leroy B. Williams, for the appellant.
    
      Frank E. Young, for the respondent.
   Foote, J.:

The plaintiff has recovered a verdict of $400 for malicious prosecution. He was arrested on process issued by a justice of the peace upon the complaint of one Hatfield, who was employed. by defendant as a detective officer at its freight yards in the towns of De Witt and Manlius, near the city of Syracuse.

It is urged by defendant in support of this appeal that on the undisputed evidence defendant’s agent, Hatfield, as matter of law, had probable cause for instituting the criminal prosecution against plaintiff. We think defendant is correct in this contention.

Hatfield had been employed by defendant in this freight yard for about three and a half years, and at Buffalo three years before that; he had two assistants under him; there had been numerous thefts from the freight cars located at defendant’s yards at De Witt, and it was Hatfield’s business to investigate and prosecute for these thefts, if he could discover who had stolen the property. Plaintiff was a brakeman employed in this yard. One Gilmore and Beam were also brakemen employed in the same yard. Early in Hay, 1910, Gilmore and Beam had been arrested, charged with thefts from the freight cars in this yard, and had acknowledged their guilt and given information to Hatfield as to other brakemen in the yard who had also been in the habit of stealing from the cars, and, among others, plaintiff Davenport. On May 23, 1910, Hatfield, with Gilmore, went before Justice of the Peace Orry B. Evans, in the town of De Witt, and Gilmore there made an affidavit in reference to his knowledge of plaintiff stealing property from defendant’s cars. He made a statement and the justice took it down in writing, and Gilmore signed and swore to it as an affidavit. In this statement he said that he had known Davenport for about four years; that about two years prior he saw Davenport get into a car loaded with merchandise in the fast freight yards of defendant in the town of Manlius, and when he came out he had two dozen oranges; after that he saw him coming from a car with two pieces of meat from the refrigerator car; they looked like pork loins; that about a year ago he saw him coming out of a loaded car, the seal of which had been broken, with two pairs of men’s shoes, and had them under his coat; about two weeks later he saw him coming from a loaded car, the seal of which had been broken, with two pairs of ladies’ slippers of good quality; eight or nine months ago he saw him stand opposite a loaded car and had in his possession three or four pairs of men’s working gloves, and he asked Gilmore if he wanted some and Gilmore said, “No,” and Davenport said, ££ All right; ” “ about two weeks ago I saw him reach into a loaded car and get two or three rose bushes and a quantity of seeds and bulbs.” After this affidavit was sworn to and on the same day Hatfield made an affidavit before the same justice, charging plaintiff with stealing the two rose bushes and a quantity of bulbs and seeds of the value of two dollars, being the last items referred to in Gilmore’s affidavit. On these two affidavits the justice issued his warrant, plaintiff was sent for, pleaded not guilty and was allowed to go on his own recognizance and was afterward tried and acquitted. Hatfield had no personal acquaintance with plaintiff and nothing appeared to indicate that either Hatfield or any one connected with defendant had any malice toward plaintiff or motive for seeking to injure him. Early in May, another brakeman, Beam, had been arrested and confessed to have stolen from defendant’s cars in this same yard, and on the sixth of May he made a long affidavit reciting numerous larcenies known to him, and stated near the close of the affidavit that among the railroad men that he knew had stolen goods from the cars at De Witt yards were several conductors and brakemen, whose names were given: George Gilmore, a brakeman named Davenport and a brakeman named Doyle.” This affidavit Hatfield had in his possession. He had investigated a number of the cases and had some of the persons arrested and some had been convicted. •

The evidence given by plaintiff upon the trial of the present case consisted of that of Hatfield to show that he was in the employ of defendant company, and his duties in that employment; that a few days before he caused plaintiff’s arrest -he had procured a search warrant and searched plaintiff’s house and had found certain cushions, lanterns and torpedoes which appeared to be railroad property but not known to him with certainty to be railroad property and claimed by plaintiff’s wife at the time the search was made to belong to parties residing at her house or to be rightfully in their possession. Next, the evidence of the justice, Evans, who produced his docket and testified that plaintiff was arraigned and tried before him with a jury and that the jury brought in a verdict of not guilty and that Davenport was acquitted and discharged. Next, the evidence of plaintiff himself, to show his employment with defendant and its duration; his arrest; that he had never stolen anything from defendant’s cars; that he had some rose bushes in his yard; that the property found in his house at the time the search was made was not stolen property; that he knew Gilmore and did not know Hatfield; that he worked as a brakeman on the road, running on freight trains, and then worked as a brakeman in the yard about five years; that about May ninth he and his wife had set out in his yard some rose hushes which he had purchased from a nursery firm of Geneva. Next, the deposition of plaintiff’s wife, who was ill, to show the circumstances of the search of her house by Hatfield and information which she gave Hatfield at the time in respect to the several articles found, to the effect that they were not stolen property. During the cross-examination of Hatfield by defendant’s counsel the facts were brought out in reference to the information which Hatfield had received from Beam and Gilmore and that he believed these statements and acted in good faith and without malice in causing plaintiff’s arrest. The two affidavits were received in evidence on this cross-examination, and defendant’s counsel went fully into the examination of this witness in behalf of defendant. Plaintiff gave no other testimony, and, after he had rested, defendant recalled the justice, Evans, who testified to the circumstances of his taking Gilmore’s affidavit. This is substantially all the testimony upon the trial. Plaintiff offered no evidence as to what took place upon his trial before the justice, and it did not appear whether Gilmore was called as a witness or what other witnesses gave testimony.

For aught that appears in this record, plaintiff may have been acquitted on the ground that he was prosecuted in the wrong town and not on the merits, as plaintiff’s counsel now points out that part of this freight yard was in the town of Manlius and part in the town of De Witt, and that Hatfield testified on this trial that the yard where this car that the rose hushes were stolen from was located in the town of Manlius.

In the absence of evidence of some improper motive or malicious intent, we think it should be entirely safe for a detective officer to procure the arrest and prosecution of an individual in reliance upon the sworn testimony of a person who claims to have personal knowledge of the guilt of the accused party. In most cases which have come before the courts, the information which was acted upon in starting prosecutions was not in the form of an affidavit or given under oath. .

There was nothing in the evidence to show that Hatfield had, or should have had, suspicion of the truth of the facts contained in G-ilmore’s affidavit, nor did it appear that Hatfield had other means of information at hand, or that good faith required him to seek for further information, nor is it suggested that he could have made further investigation, except to go to the plaintiff himself and ask him if he was guilty; this we do not think he was called upon to do. It is true that the two persons from whom Hatfield received his information of plaintiff’s supposed guilt had themselves confessed stealing property from defendant’s cars, and from this circumstance it is urged that Hatfield should not have considered himself entitled to rely upon any information which they gave concerning others. No doubt he was called upon to bear in mind the fact that his informants themselves were confessed thieves. The fact that they were such, however, placed them in a position to have knowledge of the guilt of others, and in the absence of any reason for doubting their story, we think the fact that they were in a position to have knowledge of the facts entitled Hatfield to give credence to their statements, to the extent of accepting them as probably correct and acting accordingly.

Public policy requires that a person having information which satisfies him that another person has committed a crime should be free to institute a prosecution therefor, where there is no ulterior motive, without fear of subjecting himself to personal liability in damages in case the prosecution fails, and especially should this be true in the case of public officers, or persons who by their employment are charged with a duty in respect to the enforcement of th¡e criminal law.

We think within the rule laid down in Kutner v. Fargo (34 App. Div. 317); Anderson v. How (116 N. Y. 336), and Rawson v. Leggett (184 id. 504), it must be held, as matter of law, that on the evidence given at the trial in this case Hatfield had probable cause for instituting the criminal prosecution against Davenport.

W e are also of opinion that the learned trial court was in error in refusing to permit Hatfield as a witness to testify as to the investigation he made in reference to the information he received from Gilmore as to other larcenies in this freight yard and the result of such investigation, and that defendant’s exceptions to such exclusion were well taken. The principal question in the case was as to whether Hatfield was justified in acting upon the information he received from Gilmore in reference to plaintiff’s supposed guilt of the crime of petit larceny. . He had at the same time received information of the guilt of other persons of similar larcenies at the same place. We must assume, if he had been permitted to answer these questions, it would have appeared that he investigated Gilmore’s information as to these other larcenies and found it to be correct. If so, the evidence would have been competent and persuasive in justification of his conduct in accepting and acting upon Gilmore’s information as to plaintiff.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to defendant to abide the event.

All concurred; Robson, J., in result only.

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