
    John Young, Pl’ff and Resp’t, v. William Lyall, Deft and App’lt.
    
      (New York Superior Court, General Term,,
    
    
      Filed May 6, 1889.)
    
    1. Malicious prosecution—Proof necessary to recovery.
    In an action for malicious proscution the onus of proof is upon the plaintiff to show (1), the want of probable cause for the complaint marie; and (2), malice in the defendant. The plaintiff must prove hotli of these propositions before he is entitled to recover.
    '2. Same—Acquittal by jury—Not evidence that probable cause did not EXIST.
    The question of probable cause does not depend upon whether in fact the offense charged was committed or not, nor whether the accused was guilty or innocent, but upon the question whether the prosecutor had reasonable grounds for believing that he had a right to prefer the charge which he made, and, hence, the mere fact'that the accused was acquitted by the jury, is not of itself evidence that probable cause did not exist.
    3, Same—Malice—How established.
    It may also be affirmed that malice is not necessarily inferrible from want of probable cause Unless the circumstances showing want of probable cause justify also the inference of malice, the plaintiff must establish malice by additional evidence.
    4. Same—When case becomes one for jury—When error in trial, JUDGE TO DIRECT VERDICT.
    But where the plaintiff has shown a prima facie case, under these rules, against the defendant, and the defendant has submitted the evidence on his part, of probable cause and absence of malice, the case then becomes one for the jury, and it would be error in the trial judge to direct the jury to find for defendant.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict for $450, given upon the trial of the cause at trial term, before Mr. Justice Tbuax and a jury, and from an order denying motion made upon the minutes for a new-trial.
    The action was brought by plaintiff to recover damages for an alleged malicious prosecution.
    The defendant and James Lyall were copartners in business as machinists, having in their employment from seventy-five to one hundred men. The plaintiff had been one of the employees of the firm for about five years, and had been in the habit of taking special contracts with the firm for making what was called “spool receivers,” in lots of one hundred and more, for each of which he received a fixed and agreed price. The receiver is used to hold the “bobbin” from which the cotton thread is spun in the process of weaving, every loom being provided with a receiver. It is composed of parts technically called “bands,” “bridges,” “springs” and “staples,” made of steel and brass. These receivers were made in the firm’s shops and with their tools. The plaintiff also worked generally in the shop, doing' work outside of his contract at a certain price per hour. At the end of each day plaintiff reported the number of hours he had worked that day, generally, so that he could be credited with hourly wages. He was detected in making a false report of his time and was discharged by the firm’s superintendent. After leaving that day, his tool chest being locked, was brought down, by the order of the superintendent, from the shop into the office of the firm, and when he came next day and unlocked his chest, several valuable tools of the firm were found in this chest and were immediately surrendered to the firm. It was claimed by him, however, that those tools were usually kept by him in the chest, together with the parts of the “receivers” he was working on, for better security in keeping them safely and to protect them from injury. The defendant and the superintendent, within a few days, laid the facts before a police magistrate, and the plaintiff was arrested for grand larceny, tried, and acquitted. But it appeared that the plaintiff was not arrested until the defendant’s firm had been notified by plaintiff’s lawyers to pay an amount claimed by him for wages and making “receivers.”
    The plaintiff thereupon instituted this suit for malicious prosecution.
    
      John H. V. Arnold, for app’lt; Kelly & MdcRae, for resp’t.
   Freedman, J.

The action is for the recovery of damages for malicious prosecution. The charge made by the defendant against the plaintiff, was grand larceny.

At the trial, both parties gave evidence, and the issues were submitted to the jury, under instructions which, if the case was one for the jury, carefully guarded every right the defendant had. There was no error in the charge or in the refusals to charge otherwise.

The defendant insists, however, that either the complaint should have been dismissed, or that a verdict should have been directed in his favor. The exceptions taken call for the consideration and determination of these points.

In an action for malicious prosecution, the plaintiff must establish (1) The want of probable cause for the complaint made; and, (2) Malice in the defendant. Upon both propositions he holds the affirmative. The question of probable cause does not depend upon whether, in fact, the offense charged was committed or not, nor whether the accused was guilty or innocent; but upon the question whether the prosecutor had reasonable grounds for believing that he had a right to prefer the charge which he made. For the same reason the mere fact that the prosecution terminated in favor of the accused, is not, of itself, evidence that probable cause did not exist. So malice is not necessarily inferrible from want of probable cause. Unless the circumstances showing want of probable cause justify, also, the inference of malice, the plaintiff must establish malice by additional evidence.

.The evidence shows that when the plaintiff rested, he had made out a prima facie case under these rules. It therefore remains to be seen whether the evidence given by and on behalf of the defendant, called for the direction of a verdict in defendant’s favor. »

The defendant claimed that he had no personal knowledge of the matters which constituted the foundation of the charge; that he relied upon information derived from the foreman of his factory; that such information was to the effect that, on plaintiff’s discharge from defendant’s employ, certain small pieces of machinery upon which, with others, the plaintiff had been at work, were discovered in plaintiff’s trunk; that he, the defendant, had laid the facts before a police magistrate, who concluded that they constituted grand larceny, and that it was this conclusion reached by the police magistrate, and not malice, which led the defendant to make the affidavit upon which the prosecution proceeded.

But it also appeared that there was an explanation concerning the articles discovered in plaintiff’s trunk, which the defendant could have readily had, and which he made no effort to get; that, in view of the relations between the parties and the character of plaintiff’s employment and the nature of the work he had been doing, the defendant should have hesitated to charge larceny; that no larceny had been committed; that to defendant’s personal knowledge, plaintiff’s trunk had not been removed from defendant’s premises at the time of the alleged discovery; that the defendant had submitted to the police magistrate the incriminating circumstances, without disclosing the extenuating circumstances; that the application to the police magistrate had not been made at or about the time of the discovery, but five days thereafter, and that in the meantime the plaintiff, through lawyers retained for that purpose, had demanded from the defendant the settlement of a certain claim, with notice that if not paid, suit would be brought.

Upon these, and other circumstances not necessary to be specifically mentioned, the case was one for the jury, and the direction of a verdict in favor of the defendant would have been erroneous.

The judgment and order appealed from should be affirmed, with costs.

Sedgwick, Oh. J., and O’G-orman, J., concur.  