
    Albert G. Howe, Resp’t, v. Edward M. Oldham, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    1. Malicious prosecution—Assault.
    In an action for malicious prosecution there was evidence tending to show that plaintiff was commissioner of highways; that defendant drew a wagon into a brook to prevent plaintiff from building a bridge across it, and upon plaintiff attempting to remove it defendant threw him into the stream and subsequently struck him. Defendant was arrested for assault and pleaded guilty, but afterwards procured plaintiff’s arrest for an alleged assault upon himself. Held, that assuming these facts, malice was easily to be inferred, and a verdict for plaintiff would not be disturbed.
    S. Same—Advice of counsel.
    Advice of counsel could not affect even the amount of damages in such case unless the advice was based on the facts truly stated to the counsel.
    Appeal from-judgment in favor of plaintiff, entered upon a verdict in an action for malicious prosecution.
    
      William, D. Guthrie, Grant B. Taylor and George C. Austin, for app’lt; William D. Dickey, for resp’t.
   Barnard, P. J.

The defendant procured the arrest of the plaintiff for an assault in the third degree, committed by the plaintiff upon him. The plaintiff was acquitted. Hpon the trial it appeared that the plaintiff was a commissioner of highways of the town of Woodbury. On the 23d of May, 1892, he was working upon a road claimed to be a public highway. The defendant, for the purpose of obstructing the work, had drawn a wagon in the brook to prevent the building of a bridge over the brook. The defendant did this under a-claim that the road was nota public highway. The plaintiff put his hands on the wagon to draw it out of the way and the defendant committed an assault pn him. Plaintiff made a complaint against defendant for the assault and battery on the 24th of May, 1892. Defendant was arrested thereon and on the 2d day of June, 1892, pleaded guilty to the charge. The defendant made the complaint and procured the arrest of plaintiff on' the 2d of June, 1892. The defendant gave evidence tending to show that an assault was committed on him. If there was no assault committed then a case is made out to go to a jury, and if the jury find no assault committed, then defendant has made a false charge and thereby caused plaintiff’s arrest The jury were told that if, from the evidence, the defendant, as a reasonable man, had probable cause for the complaint, the action failed. The jury were told that if the arrest of plaintiff was made without sufficient cause, they might infer malice, and in such case give damages for the injury. Under the finding of the jury the judgment should be affirmed.

It is established by the verdict upon positive and clear proof that the defendant obstructed the plaintiff, a public officer, in his duties to the public. That when the plaintiff attempted to remove the obstruction, the defendant threw him into the stream and subsequently struck him. That the defendant falsely asserted that the plaintiff committed an assault upon him and caused the plaintiff’s arrest and trial. Assuming these facts, the malice of the defendant is easily and necessarily inferred. Heyne v. Blair, 62 N. Y., 19 ; English v. Major, 36 St. Rep., 69.

The question whether the defendant made the charge “ of his own volition ” raised no question of advice of counsel. He had admitted in his testimony that he made the complaint at the request of his employer, and so far as that affected the question of damages he had the evidence. The sole question presented to the jury was whether the complaint of defendant against plaintiff was false or not, and no advice of counsel could affect even the question of damages unless the advice was based on the facts truly stated to the counsel. The charge was not excepted to in respect to so far as it related to the assault. It is too late on appeal under the circumstances of this case to claim error. The •jury were told what an assault was, but they were also told that defendant could act on appearances, which is all that appellant now urges for error.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  