
    John D. Gierhon, App’lt, v. Thomas W. Ludlow, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889.)
    
    Malicious prosecution—Question for the jury—Probable cause.
    . Where, in an action for malicious prosecution, against the evidence of the plaintiff, denying that he had done the wrong charged against him before the magistrate, and the fact that he was tried and acquitted, the only evidence was that of defendant, the instigator of the charge, and his agent, Held, that it was error to dismiss the complaint, and that the case was one for the jury.
    Appeal from a judgment dismissing the plaintiff’s complaint.
    The action was brought for malicious prosecution. The plaintiff was arrested on the charge of throwing rubbish in the street; he was tried and acquitted. The charge was made by an agent of defendant acting under his directions.
    
      Joseph IP. Daly, for app’lt; Lewis L. Delafield, for resp’t.
   Pratt, J.

I think this case ought to have been submitted to the jury. The question whether or not there was probable cause for the complaint to the magistrate, did not rest upon that which the law views as undisputed testimony. The credibility of the personal testimony of the defendant was for the jury, within well-established rules. The other testimony of defendant’s witnesses came from persons who stood in such relations to him, that their testimony was within the same rule. Besides that, there was a denial by the plaintiff that he had done the wrong alleged against him before the magistrate, and the undisputed fact that the plaintiff was tried on that charge and acquitted by the verdict of a jury. The testimony clearly shows that defendant was the real mover in this unfounded criminal prosecution. He retained the counsel who appeared against plaintiff before the magistrate, and instructed him to procure the warrant. He attended at the trial, and seems to have been the person who was actually responsible for it. The complaint was not made by defendant personally, but by his agent, who acted under his direction, and on the advice of his counsel. He was clearly the real prosecutor.

The case is very close to the border line, but, on the whole, I think was within the rule which required its submission to the jury.

The plaintiff’s exception to the learned trial judge’s ruling dismissing the complaint should, therefore, be sustained, and a new trial should be ordered. It seems that, although the exceptions were regularly ordered to be heard in the first instance at the general term, another order absolute was also entered, dismissing, the complaint on the merits. I do not understand that these orders were intended to be, or were, in fact, in conflict; or that the latter was intended to supersede the former. It will be safer, however, to reverse the latter order, to the end that full force and effect may be given to the former, and that should be accordingly done.

Barnard, P. J., concurs; Dticman, J., not sitting.  