
    James J. Connors, Respondent, v. Edward Collins, Appellant.
    Third Department,
    November 22, 1912.
    Malicious prosecution — causing arrest of witness for perjury — materiality of testimony—probable cause.
    In an action for malicious prosecution it appeared that upon the trial of an action by the defendant against a construction company a material issue was presented as to a conversation between one D. and defendant. Plaintiff was called as a witness by the defendant and testified in substance that although he was present he had no recollection of that part of the conversation to which defendant testified and which was denied by D. Thereafter defendant caused plaintiff to be arrested for perjury. Plaintiff, after his release upon the ground that his evidence was not sufficiently material to subject him to a charge of perjury if false, brought this action.
    
      Held, that the testimony of this plaintiff upon the trial of the action against the construction company was, as a matter of law, material.
    If the plaintiff was not present at the time of such conversation, defendant had probable cause for his prosecution. If the plaintiff was present at the time of the alleged conversation and defendant knew it, there was no probable cause for bis prosecution. Judgment for the plaintiff reversed and a new trial granted.
    Betts, J., dissented.
    Appeal by the defendant, Edward Collins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 23d day of February, 1912, upon the verdict of a jury for $1,000, and also from an order entered in said, clerk’s office, on the same day, denying the defendant’s motion for a new trial made upon the minutes, and also from a similar order entered in said clerk’s office On the 28th' day of February, 1912.
    
      J. W. Atkinson, for the appellant.
    
      Neile F. Towner, for the respondent.
   Smith, P. J.:

In the trial of an action brought by this defendant against the Fort Orange Construction Company a material issue was presented as to a conversation occurring at a certain time between one Dumary and defendant Collins, Collins swearing to the conversation, which, if true, would have been material to his cause of action, and Dumary denying that such a conversation took place. This plaintiff was called as a witness upon that trial by defendant and said that he was present at that conversation and stated certain things that were there said, and further swore in substance that he had no recollection of that part of the conversation to which Collins swore and which was denied by Dumary. The effect of the plaintiff’s testimony was to negative the fact that such conversation did occur and to corroborate Dumary in his denial thereof. Thereafter this defendant caused Connors to be arrested for perjury in testifying that such conversation did not occur. Upon the hearing before the magistrate the stenographer’s minutes were produced which showed that plaintiff’s testimony was to the effect that he did not remember that part of the conversation. The plaintiff was then released by the magistrate apparently upon the ground that the plaintiff’s evidence was not sufficiently material to subject him to a charge of perjury if false. Thereupon plaintiff brought this action against the defendant for malicious prosecution in causing his arrest. The learned trial judge submitted to the jury the question as to whether the plaintiff’s evidence upon the trial of Dumary against this defendant should fairly he construed as a denial of the fact that the conversation sworn to by Collins took place. The jury found for the plaintiff and rendered a verdict for the sum of $1,000. From the judgment entered upon this verdict and from the order denying the motion for a new trial this appeal is taken.

We are of the opinion that the testimony of this plaintiff upon that trial was as matter of law material testimony and should have been so held by the learned trial court. If the plaintiff was not present at the time of such conversation this defendant had probable cause for his prosecution. If he were present and defendant knew it, the testimony that he did not remember the conversation would hardly have been sufficient, under the facts as they here appear, to have justified the defendant in causing the arrest.

The judgment and order should, therefore, he reversed and a new trial granted, with costs to the appellant to abide, the event.

All concurred, except Betts, J., dissenting.

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