
    NUNZIO CARINE, BY HIS NEXT FRIEND, PLAINTIFF-APPELLEE, v. SIMON YOIN, DEFENDANT-APPELLANT.
    Submitted December 6, 1924
    Decided February 19, 1925.
    Malicious Prosecution — Defendant Mistakenly Identified Plaintiff as the One Who Had Robbed His Store, Causing His Arrest — Allegation That He Had Acted Without Malice, Without Merit — Alleged Defects in Complaint Not Sufficient to Justify Reversal.
    On appeal from the District Court of the city of Elizabeth.
    Before Justices Trenchabjd, Minturn and Lloyd.
    For the appellant, William B. Wilson.
    
    For the appellee, David 8. Form,an.
    
   Per Curiam.

This is a case of malicious prosecution. The defendant kept a store and was robbed of $60 on the night of February 23d, 1924. An officer accosted the plaintiff on the street, took him to defendant’s store, where he was identified by defendant as one of the two who had robbed him. In consequence, the plaintiff was taken to police headquarters. No written complaint was made at the time, but. on the following day, plaintiff being in custody, defendant swore out a complaint, and on the following day- a hearing was given, and plaintiff was discharged. Before swearing to the complaint the defendant was apprised by a reporter friend of the plaintiff, and otherwise, that plaintiff could not have been the man who robbed him.

Judgment was given in the malicious prosecution case by the judge, sitting without a jury, for the plaintiff, in the sum of $150. Defendant appeals, and contends that the complaint in the District Court was insufficient, in that it failed to allege malice, and also that there was not sufficient proof of malice, in fact.

We think bo.th contentions are without merit.' Defendant, admittedly, was acting on knowledge which was personal to himself and not on that acquired from others. AVhen he caused'the plaintiffs commitment he claimed only that he used his own senses for identification. That he was, at least, mistaken in-the individual,-is clear from the evidence, and the finding below. Whether, under the circumstances; he knowingly, and without probable cause, • had the plaintiff arrested, as the judge found, we think was a question of fact for the trial court. If without probable cause, the consequent finding of malice was, of course, entirely justified.

As to the complaint, though inartistieally drawn, we think the judgment should not be reversed for this reason: It set out the alleged malicious conduct of the defendant, and the parties understood the case to be one of malicious prosecution.

The judgment will be affirmed, with costs.  