
    Rebecca Rosenberg v. Stano Salvatore.
    
      (City Court of New York, Special Term,
    
    
      Filed June, 1888.)
    
    Criminal adjudication not rbs-adjudicata in a civil action.
    A conviction or acquittal in a criminal proceeding is not res-adjudicata in a civil action, nor is the record admissible in evidence except to establish the mere fact of conviction or acquittal, or to affect the credibility of a witness.
    The plaintiff, on complaint made by her before a police magistrate, caused the arrest of the defendant on the charge •of assault and battery. The magistrate held the defendant for trial at the special sessions. A trial was there had, at which the plaintiff and defendant and their witnesses were sworn, and the court, after full investigation and hearing, found the defendant “not guilty,” whereupon it was “ordered and adjudged by the court that the said Stano Salvatore, defendant, for the misdemeanor aforesaid, whereof he is acquitted, be fully and finally discharged.” The plaintiff thereupon sued the defendant in this court for the same offense, and on the same evidence insisted upon her right to go to the jury as to the truth of her allegations, to the end that if they were believed she might be awarded such damages as the jury saw fit to find. The defendant insisted, and the court held, that as the offenses charged were identical, the proof which would entitle the plaintiff to a verdict would, if true, have entitled her to a conviction in the special sessions; that there could not be an acquittal there and a verdict of guilty here on the same proofs, whereupon the plaintiff’s complaint was dismissed, and the present application is for a new trial- upon the-ground of misdirection and error in said ruling.
    
      O. L. Stewart, for motion; R. H. Racey, opposed.
   McAdam, C. J.

If the familiar doctrine that the judgment of a court of competent jurisdiction, directly upon the point, is as a plea in bar or evidence conclusive upon the same matter directly in question in another court, applies where the first judgment was rendered by a criminal court in a proceeding in the name of the people, on the complaint, of A against B, and the same identical matter subsequently comes up between A and B in a civil action, it is clear that no error was committed of which the plaintiff can complain, for a stronger case than the present could not be found to-which the rule might be more appropriately applied.

The parties to the present litigation were the real contending parties to the criminal prosecution, the plaintiff as complainant and the defendant as the prisoner. The prosecution was set on foot by her, and she remained an actor in it to the end. The name of the people was used merely because it was a criminal prosecution which was required to be prosecuted in that form, yet it is upon the technical ground that the prosecution was in the name of the people that elementary writers and the authorities hold that the parties are not the same, that there is no mutuality between them in such a determination, and consequently it does not prejudice or affect the rights of either when presented in a civil court for adjudication. Greenleaf on Ev., § 537; Wharton on Ev., § 776; Taylor on Ev., § 1430; Starkie on Ev. (8th Am. Ed.), marg. p. 361; Abbott’s Trial Ev., 649, par. 7; Casey. Reeve, 14 Johns., 79, 82; Sims v. Sims, 75 N. Y., 471.

If the record of acquittal proved the defendant’s innocence for the purpose of this action a verdict of guilty would as a necessary consequence have proved the defendant’s guilt for the like purpose, but neither produces either of these results.

If a party is convicted of assault at the general or special sessions, the conviction cannot be received in evidence for any purpose in a civil prosecution for the same assault, for the issue in the civil action is to be determined as if no criminal prosecution had ever been commenced.

If a party indicted for any offense has been acquitted, and sues the prosecutor for malicious prosecution, the record may be used to prove that the prosecution had terminated, but the defendant, notwithstanding the verdict, is still at liberty to prove the plaintiff’s guilt (Taylor on Ev., § 1480), for as the court said in Turner v. Dinnegar (20 Hun, at p. 466), “actual guilt is conclusive evidence of probable cause.”

Wharton in his work on Evidence (§ 776), says: “The record of acquittal is admissible to 'prove the determination of the prosecution and the plaintiff’s acquittal, but is irrelevant to prove innocence.” Citing Purcell v. Macnamara, 9 East, 361; 1 Campb., 199, 203, note; Corbley v. Wilson, 71 I11., 209; Skidmore v. Bricker, 77 id., 164.

To substantially the same effect is Wells on Res-Adjudicata, § 420, citing Hutchinson v. Bank, 41 Pa. St., 44; Betts v. New Hartford, 25 Conn., 184.

A judgment of conviction on an indictment for forging a bill of exchange, though conclusive as to the prisoner being a convicted felon, is not only not conclusive, but is not even admissible evidence of the forging in an action on the bill. (Per Blackburn, J., Castrique v. Imrie, L. R., 4 H. L., 434. In a suit by a widow against a party for killing her husband, the record of the acquittal of such party on an indictment for murder of the husband is irrelevant. Cottingham v. Weeks, 54 Ga., 275. The books contain many other cases illustrating the principle stated.

Except for the purpose of discrediting a witness or the like on conviction for crime (conviction not affecting the competency of the witness in this state, Code. § 832), records of conviction in criminal courts cannot be received as evidence in civil actions for any purpose, the rule being to reject them as wholly irrelevant. How far a record of conviction in one criminal case is conclusive in another, not being germane to the question under discussion, need not be considered. It was error to admit the record of acquittal, and it was error to hold that it was a bar to this action, or had any relevancy whatever, to the issue to be tried.

Eor these reasons a new trial will be ordered, without costs. _  