
    John Galley, Respondent, v. William Brennan, Appellant.
    Fourth Department,
    April 30, 1913.
    Malicious prosecution—evidence—lack of probable cause.
    Where in an action for malicious prosecution it appeared that the defendant, some manure having been stolen from his premises, inquired of his employees and neighbors as to the identity of tho person taking it; that the description, residence and occupation of the person described to him tallied with those of the plaintiff; that the plaintiff was positively identified by name by a person who talked with two of the persons interviewed by the defendant, and that upon such information the defendant secured a warrant, but the matter was dropped and the plaintiff was never formally arrested, it was error for the court to hold that there was lack of probable cause, and a judgment for the plaintiff should be reversed and the complaint dismissed. .
    Kruse, J., dissented.
    Appeal by the defendant, William. Brennan, from a judgment of the Qounty Court of Erie county, entered in the office of the clerk of said county on the 2d day of December, 1912, upon the verdict of a jury for $150, 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.
    
      William Brennan, Jr., for the appellant.
    
      H. B. Butterfield, for the respondent.
   Lambert, J.:

The action is for malicious prosecution, and grows out of the following facts: The defendant is the owner of a tract of land at Cheektowaga, Erie county. Adjoining this land certain of his neighbors had barns, from which they were accustomed to throw out manure upon defendant’s land, with the understanding that same should belong to defendant. At the time of the occurrences complained of there had accumulated some little quantity of such manure. Some person, without the consent or knowledge of the defendant, reproved this manure. Upon discovering that same had been stolen, the defendant instituted inquiry as to the identity of the thief. He was informed by one Heisenbuttle that a man who lived at Garden-ville had tried to purchase the manure. One Keefer told him that a tall man with sandy mustache and sandy hair and driving a .bay team had taken the manure away. One Anthony Oarroll, an employee of the defendant, informed the defendant that one Henry Tresselt had told him that the plaintiff, a florist at Gardenville, took the manure. . Paul Gluin also told defendant of a talk he had had with Tresselt, and that there was no question about it being the plaintiff from the description that Tresselt had given him: .

Upon such information, defendant laid a complaint'before a magistrate and a warrant was issued for the arrest of the plaintiff. He was never formally arrested, but was notified to appear upon two or three occasions, when finally the matter was dropped without trial.

Plaintiff and defendant were total strangers, residing some seven miles apart. Plaintiff is engaged as a florist at Garden-ville and customarily kept a man and team engaged in driving about the country picking up manure for use in his business.

Upon the trial of this action a verdict was rendered for the plaintiff in the sum of $150.

The action being for malicious prosecution, the burden was upon the plaintiff to show malice. There is no claim that there is direct proof of malice. It is to be inferred, if at all, from lack of probable cause for causing the arrest of the plaintiff, In my judgment the proof falls far short of showing lack of probable cause.' That question, in this class of cases, is for the court in the first instance, as a question of fact, to determine whether an inference of lack of probable cause is justified. The trial court recognized that rule and determined such question adversely to the defendant, and therein lies the error.

Defendant’s manure had been stolen by some one. As was the natural course, defendant inquired of his employees and neighbors as to the identity of the person taking it. The description, residence and occupation of the person described to him tallied with those of the plaintiff. There was then added the positive identification by name, from Tresselt to two of the persons interviewed by the defendant. This afforded ample justification for the honest belief that plaintiff was the thief and justified the institution of the proceeding, in the interest of society.

About the only criticism possible of the defendant’s investi- ' gation is that it stopped short of direct inquiry of Tresselt. But it has been frequently held that second-hand information may afford sufficient ground for the institution of criminal proceedings. (McCarthy v. Barrett, 144 App. Div. 727; Francis v. Tilyou, 26 id. 340; Davenport v. N. Y. C. & H. R. R. R. Co., 149 id. 432.)

Upon those and kindred decisions I can see no room for a recovery in this action, and I, therefore, recommend the reversal of the judgment and order appealed from, with costs, and, further, the dismissal of the complaint, upon the merits.

All concurred, except Kruse, J., who dissented and voted for affirmance.

Judgment and order reversed and judgment directed for the defendant dismissing the complaint upon the merits, with costs, including costs of this appeal.  