
    Helen J. Wright, Resp’t, v. Walter S. Church, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. MAT.Tl-.rnna PROSECUTION—COMPETENCY OP EVIDENCE.
    On the trial of an action for malicious prosecution, in that the defendant sued out a peace warrant, it appeared that the defendant had taken an-officer to the house of the plaintiff and threatened to dispossess her by a, writ issued upon a judgment which had heen assigned to the defendant, which judgment was against IT., with whom the plaintiff had no privity of estate; that she thereupon threatened that if the officer dispossessed her there would be trouble. This having been the ground for the issuing of the peace warrant, it was not evidence that the deed under which plaintiff held was without consideration, and was a mere scheme or device to defeat an execution for possession, and was incompetent and irrelevant.
    2. Same—Evidence—Admissibility.
    It was not admissible to show that the defendant, at the time the threats were made knew of resistance being offered to, and of the killing of officers in the vicinity shortly before, when such officers were executing writs on similar judgments in what is known as anti-rent proceedings.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment in favor of the plaintiff entered in Albany county clerk’s office upon the report of a referee.
    The facts will be found fully stated in the following opinion of the general term.
    Bockes, J.—The action was for malicious prosecution. The trial was before a referee who found for the plaintiff and directed judgment in her favor for §510, with costs. Judgment being perfected, this appeal therefrom was taken.
    The leading facts of the case briefly stated are substantially as follows: The defendant, Church, was assignee of a judgment in ejectment recovered in 1865, on a lease in fee for non-payment of rent, in which judgment James Kidd and Peter Cagger, were plaintiffs, and Caleb Nelson was defendant. In February, 1883, an order was granted on the application of Mr. Church, giving him leave to issue a writ of possession thereon. Such writ was issued, and placed in the hands of deputy sheriff Chamberlin, to be executed. Thereupon, and on the seventh of May, of the last mentioned year, Mr. Church, with the deputy sheriff, went to> the premises, found the plaintiff in possession, claiming under title hostile to Church’s right, and when informed of their purpose to have possession given Mr. Church, tinder the writ, she objected to its execution, and denied that her possession was in any way subservient thereto. An altercation between Mr. Church and the plaintiff, and some of her friends who were present, ensued. According to the evidence, Mr. Church used some strong and emphatic language, declaring that the plaintiff should be dispossessed the following day; adding, as some of the witnesses stated, “you’ll go to jail to-morrow! ” The plaintiff denied his right to dispossess her under the writ, and declared her purpose to make resistance if that was attempted. The strength of the proof is to the effect that the plaintiff made no serious threats nor indeed any threats of personal injury against any one more than this; that she should resist being dispossessed under the writ of possession against Caleb Nelson, No further attempt was made to execute the writ. On the second day following (May 9), Mr. Church made complaint on oath, before a justice of the peace, charging that the plaintiff, on the preceding seventh May, threatened to commit an offense against the person of Chamberlin, to wit: “tokill, hurt or maim” him, and to do him great bodily harm; and that he had great cause to fear that the said Helen Wright would carry such threats into effect. On this complaint he procured a warrant from the justice against the plaintiff, and caused her arrest thereunder. She was under arrest several days, at considerable inconvenience and some expense, when the proceeding ended by her discharge. Among other findings of the referee he certifies, as a fact found by him upon the evidence, that the only threat made by the plaintiff, was that of resistance against the execution of the writ against Nelson, and from that threat there was no probable reason to apprehend a breach of the peace or a violation of law. and further, that the complaint made by the defendant against the plaintiff, and the proceeding of the warrant thereon, and her arrest and detention thereunder, was willful and malicious and without probable cause.
    Now, without detailing the evidence more particularly than as given above, of what occurred on the seventh of May, and thereafter in the procuring of the plaintiff’s arrest, and which evidence we have examined with care, we are of the opinion that the referee was justified in his finding that the plaintiff’s arrest and detention under the warrant issued against her were without probable cause.
    We can find under the proof no ground for a reasonable belief that Chamberlin was in danger of personal injury from the plaintiff. Her threats, giving them their utmost effect, intimated nothing beyond the making of lawful resistance to the execution of the writ of. possession running against Nelson, the validity of which as against her, the defendant as it seems, himself doubted.
    But belief in the guilt of the accused will not satisfy a criminal prosecution without reasonable or probable grounds; therefore a real belief, and reasonable grounds for it, must concur to afford a justification. Farnam v. Feeley, 56 N. Y., 451; Hall v. Suydam, 6 Barb., 83.
    The most that can be maintained against the plaintiff, from her acts or language, is that she would make resistance against the threatened infraction of her rights of person and property. In this she was guilty of no crime; guilty of no offense against the law.
    But it is urged that there was no evidence of malice on the part of the defendant, which is essential to the right of action for malicious prosecution.
    There was, however, evidence bearing on this subject for the consideration of the referee, and we cannot say that his finding thereon is against the evidence or is unsupported by it. What occurred on the seventh of May ? The defendant’s language on that occasion. What followed on the proceeding before the justice, with his testimony on the trial, that his action was without malice, was all matter for the referee, to be by him considered and weighed; and in this connection it should be noticed that it is the law that malice may be inferred from want of probable cause. Heyne v. Blair, 62 N. Y., 22; Wait’s Actions and Defenses, vol. 4, p. 345, and cases there cited; also Stewart v. Sonneborn, 98 U. S., 187; and it was held in Burhans v. Sanford, 19 Wend., 417, that want of probable cause being made to appear, it was not necessary to support the action to show that the act complained of was dictated by an angry feeling or a vindictive motive. On this question we must hold, as we think, that the evidence is sufficient to sustain the conclusion of the referee. Several exceptions were taken to rulings of the referee on questions of evidence. We would only say that, having examined those rulings, we find many of them clearly and plainly untenable, and none of them so touching the merits of the controversy injuriously as to require a reversal of the judgment.
    Finally it is urged that the damages allowed ($510) are excessive in amount. Had the trial been before a jury the court could not, on appeal, have reversed the judgment on this ground unless it could be readily seen, in view of all the evidence in the case, that the jury must have been biased or in some way improperly influenced.
    Here the parties put the referee in the place of a jury by consent, as the reference could not have been compulsory. What sum should here be awarded was made to depend very much upon the conscience and judgment of the referee, accordingly as he should give the evidence construction. We cannot here, on appeal, adjudge that he was in error, inasmuch as we cannot say that his conclusion in this regard was, and is plainly, manifestly wrong. The amount-to be justly awarded in a case like the present is not limited to the actual damage to the party, growing out of the wrong complained of, as the action to some extent is like that of slander and libel, based on an injury to character.
    In conclusion, we are of the opinion that the judgment must be affirmed.
    Affirmed, with costs.
    
      S. W. Rosendale, for app’lt; William Youmans, for resp’t.
    
      
       Affirming 39 Hun, 652, mem.
      
    
   Danforth, J.

Upon the record in this case nothing more favorable to the appellant can be said than that a report by the referee in his favor might have been sustained upon the ground that such finding would not have been entirely unsupported by evidence. On the other hand the report against him and the finding that “the complaint, warrant and arrest of the plaintiff therunder, were willful, malicious, illegal and without probable cause,” stands upon testimony properly received, credible to the referee, and satisfactory to the general term. It is sufficiently referred to in the opinions of the learned judges of that court, and our own examination of the case justifies, and enables us to concur in that conclusion.

It is said, however, by the learned counsel for the appellant, that evidence offered or called for by the defendant, was improperly excluded.

First. The plaintiff claimed to be -in possession of the premises in question, under a deed which had been put in evidence, and one Boomhower, a witness for plaintiff, being-under cross-examination, was asked, ‘ what was paid for that deed, ” the defendant’s counsel at the same time offering to show that there “was no consideration for it and that ifc was a mere scheme or device to defeat the execution for the possession of the farm.” -The execution referred to, recited a judgment of June, 1865, against one Caleb Nelson, for the possession of the premises, and no other person. It was issued to the sheriff May 5, 1883. The plaintiff's title was under a deed from Mephibosheth Nelson and Martha Nelson to Hannah- Nelson, of April 2, 1860, and from Hannah Nelson to Helen J. Wright, the plaintiff, in April, 1883. This is the deed referred to in the question. The grantee was in possession of the premises; she made no claim even under the judgment-debtor, and we see no ground upon which, in this action, the inquiry could be relevant or justifiable.

Second. The defendant while on the stand as a witness in his own behalf, was asked by his counsel “ had there been occasions frequently befoi-e this occurrence and in that section of the country, in the process of enforcing writs in what is commonly known as anti-rent proceedings for resistance to be offered against the enforcement of such writs on the part of those in possession of the premises, including both women and men, under claim of some superior title to that which was to be enforced in the writ, and were you familiar with such facts and had you been present yourself, when such resistance had been offered, and had such occurrences taken place within a brief period of the occurrence in question, and had such resistance been carried to the point of killing the officers in the execution of the writs?” And this being excluded, “ off ered to show all the facts embraced in the affirmative part of that question.”

To each ruling there was an exception, and it is now relied upon. No reason is assigned in support of it, and none is perceived. The defendant went upon the plaintiff’s premises with no process against her, and was informed that she had the title under Hannah Nelson, and, as the referee finds, “ the defendant thereupon, in a violent and threatening manner, informed the plaintiff, while in her house, and upon her premises, that he would throw her out of said house and premises, under said writ of possession, on the next day, in reply to which the plaintiff informed the defendant that if he attempted to remove her under the writ of possession, against Caleb Nelson, there would be trouble.”

Of what materiality was it that upon other occasions there had been resistance and trouble ? As against the plaintiff the defendant had no writ, and as against that which he had, and the assault which he threatened, she might make lawful resistance. The unfortunate state of affairs, to which the question alludes, seems wholly foreign from the defendant’s case in this action. If he believed there was, from this plaintiff, danger of an assault, he must also have known that it could only happen upon his own instigation, and that unless he or his agent trespassed, they were safe from interference.

The referee finds “that on learning that the plaintiff was lawfully in the possession of the premises, he knew as matter of fact, and was bound to know as matter of law, that he could not remove the plaintiff therefrom under said writ or execution, for possession against Caleb Nelson.

That the only threat made by the plaintiff was that of resistance against the execution of the writ against Nelson, and from that threat there was no probable reason to apprehend a breach of the peace or a violation of law,” and there is no view of the evidence which requires any other conclusion, or which tends to show that the facts suggested by the question, if they existed, could have had any material or just operation upon the defendant’s mind. As against the plaintiff he had, so far as the record shows, no right, and neither for himself or the sheriff, in whose favor the arrest appears to have been made, any cause for apprehension.

We think the judgment should be affirmed.

All concur, except Peckham, J., not sitting.  