
    Susan Wrench, Pl’ff, v. Ricka Samenfeld, Def’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Malicious prosecution—Probable cause.
    Defendant caused plaintiff’s arrest for maliciously breaking down and injuring her fence and building, and the charge was decided in plaintiff’s-favor. In an action for malicious prosecution it appeared that the parties were owners of adjoining real estate; that defendant rebuilt the fence which had blown down, and that plaintiff tore it down and with it the tin leader on defendant’s house. Held, that defendant had probable cause for causing the arrest.
    Motion by plaintiff for a new trial on exceptions after judgment in favor of defendant.
    
      S. D. Levy (James W. Ridgway, of counsel), for pl’ff; Theodore Burgmyer (F. E. Dana, of counsel), for def’t.
   Barnard, P. J.

—This action was brought to recover for false imprisonment and for malicious prosecution. The complaint upon which the arrest, was made charged upon oath that the plaintiff maliciously brokedown and injured her fence and building. No objection was made that the warrant was issued without an examination of the complainant or other witnesses. I assume from the case that the complainant (defendant) made oath in support of her complaint in the very words of the original complaint, and there is no objection to this, if the complaint be supported. Was the action for a malicious prosecution made out? Two of the four requisites to support such an action were established upon the trial. The defendant caused the arrest of the plaintiff upon a criminal charge, and the charge has been finally decided in the plaintiff’s favor. There is no proof to show express malice other than-what may be inferred from the lack of probable cause. The case therefore rests upon the fact whether or not an absence of probable cause was proven. The parties are adjoining owners of land. The fence was blown down and was rebuilt again by defendant in the same place. The plaintiff said she would tear the fence down if it went up. A slip was nailed on the house where the old fence was. This was destroyed by plaintiff, also the fence, and with it the ’tin leader on the defendant’s house. If a person unlawfully and wilfully destroys or injures the real or personal property of another, he is guilty of a criminal offence. Penal Code, § 654.

Even if a trial court should hold that the offence was no more than a dispute as to the title to land, a complainant whose property has been destroyed with no basis whatever for a claim of right should be held to have had a right, without fear, to put the facts before a court for adjudication. Murray v. Long, 1 Wend., 140; Baldwin v. Weed, 17 id., 224; Carl v. Ayers, 53 N. Y., 14; Fagnan v. Knox, 66 id., 525.

The action was not therefore supported by evidence, and the exception should be overruled, and judgment should be affirmed.

Dykman, J., concurs; Cullen, J., not sitting.  