
    Raymond Cook, by William Cook, His Guardian ad Litem, Respondent, v. Wesley A. Bartlett, Appellant.
    Fourth Department,
    November 14, 1906.
    Malicious prosecution — arrest for failure to return mileage book taken up by conductor — evidence of malice—erroneous charge as to damage.
    The defendant, the holder of a mileage book bought for him by another and standing in the name of the latter, and containing the provision that it would be taken up and forfeited if used by any other person than the purchaser named, gave the same to the plaintiff for a consideration, to be used by him for a certain journey. The plaintiff gave it to a woman for whom he had purchased the use of it, though it was contended by the defendant that plaintiff had been .forbidden to do this. The book was taken from the woman by the conductor of the train on the ground that she was not the person named therein and that the book was forfeited. The defendant demanded the return of the book from the plaintiff, who refused, but upon being threatened with criminal proceedings, agreed to pay for the book in weekly installments. He paid one installment, but defaulted as to the rest. The defendant caused the arrest of the plaintiff, but subsequently abandoned the proceeding.
    In an action for malicious prosecution,
    
      Held, that the defendant was the owner of the book, both because the railroad might waive its right to refuse passage to any person but the'original purchaser, and because, in any event, the book was valuable to the defendant, being still good for the transportation of the original purchaser, and hence the plaintiff could not be heard to say that he 'was under no obligation to return it to the defendant;
    That it was error to charge that it was immaterial whether it was understood that the plaintiff only was to use the book, or whether he had a right to give it to 'another person under the agreement with the defendant;
    That it was error to exclude evidence by the defendant that he had taken the advice of counsel and the advice, of the justice of the peace before causing the arrest of the plaintiff, for such evidence was relevant on the question of want of malice, even though under the facts there was no probable cause as a matter of law;
    That under the circumstances it was error to charge in effect that the defendant was liable for more than nominal damages as a matter of law.
    Appeal by the defendant, Wesley A. Bartlett,-from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Steuben on the 17th day of April, 1905, upon the verdict of a jury for $175, and also from an order entered in said cleric’s office on the 1st day of May', 1905, denying the defendant’s motion for a new trial made upo'n the minutes.
    The action is for malicious prosecution. The defendant was a railroad ticket broker at Addison, ÍST. Y. He had in his possession a mileage book issued by the Erie Railroad Company in the name of L. Orr. The book was purchased by Orr with the defendant’s money and at his request. Orr used the book to Buffalo and return, paying the defendant therefor and returning the book to the defendant, leaving a mileage of 730 miles in the book. The book was issued under an express regulation printed therein and signed by On-, the original purchaser, to the effect that it was good for transportation only to the purchaser named, and would be accepted for his' transportation only when presented to the conductor, and. if presented by any other person it would be taken up and forfeited.
    On the evening of August 7, 1904, the plaintiff' applied to the defendant for a mileage book, stating that he would likfe a mileage book to go to Corning. The defendant delivered .to him this mileage book, and the plaintiff paid defendant therefor at the rate of-two and one-half cents a mile for the distance from Addison to-Corning and return, the sum of sixty cents. The defendant testified that he told the plaintiff not to let any woman have the book; that it was good only for a man; that the plaintiff said he would return the book upon the arrival of train 19 that evening, or upon the arrival of train 7 the next morning, due about seven o’clock.
    The plaintiff denied that he was told not to let any woman- have the book, and that it was good only for á man. He testified that he procured the book for a Mrs. Frazier. He declared that he supposed the book was just as good for a woman as for a man, and that was the reason that he did not mention the fact that lie was getting the book for someone else, The defendant, however, testified that plaintiff admitted that he knew that it was not good for a woman, but thought he would take his chances.
    The plaintiff handed the book to Mrs. Frazier. She used-it in going to Corning, and it was accepted for- her transportation. On her return trip the next day the mileage book was taken up by the conductor of the train.
    The book not having been returned to the defendant the next morning, the defendant proceeded to look up the plaintiff. He found him in the afternoon or evening, and was then informed by the plaintiff that the book had been taken up. A dispute arose between them as to whether the defendant, had informed the plaintiff not to let a woman have the book, and that it was good only for a man. The defendant insisted that the plaintiff should pay for the book. This the plaintiff refused to do. The defendant told plaintiff that he would have plaintiff behind the bars if he did not pay for the book. The defendant says he told the plaintiff he would make him pay for it or would “ send him over the hill.”
    Finally the plaintiff agreed to pay for the book at the rate of one dollar and fifty cents a week until it was paid for. He paid one dollar and ten cents, but no more. He says defendant met him two or three times after that and said that he would have him arrested if he did not pay, and would make him trouble.
    On the eighth of the following October the defendant saw a justice of the peace and told him about the plaintiff getting the book. An information and deposition was written out by the justice and' signed and sworn to by the defendant, and thereupon a warrant was issued by the justice, and on the seventeenth day of October the plaintiff was arrested and taken before the justice. The matter was adjourned to the twentieth of that month, and was again adjourned to the twenty-sixth, when the proceeding was withdrawn.- ' The plaintiff was never in jail, never locked up, nor required to give any bonds. . The policeman requested him to go before the justice, and he went. .He says: “ I gave the officer my parole that I would be present-at the time of the adjourned day, and that was the reason he didn’t lock me up.”
    After the criminal proceeding against the defendant had been terminated, the plaintiff commenced this action against the defendant to recover damages sustained for such arrest and prosecution, alleging that the proceeding was started by the defendant maliciously and without probable cause. This the defendant by his answer denied, and he alleged affirmatively that the criminal proceeding was brought in good faith, stating the circumstances in connection therewith; that he was afterward advised by his counsel to withdraw the complaint and sue the plaintiff in conversion for the mileage book, which he did and recovered judgment therefor.
    The trial justice refused to-submit to the jury any question except damages, and the jury found a verdict for the plaintiff for the sum of $175.
    
      
      James O. Sebring, for the appellant.
    
      Delmar M. Darrin, for the respondent.
   Kruse, J.:

We think the judgment appealed from cannot be sustained. While we are disposed to agree with the trial court that the undisputed facts show that the 'criminal proceeding brought against the plaintiff by the defendant was-without probable cause,- we cannot assent to the proposition that this alone -entitled the plaintiff to recover and required the jury to find a verdict for substantial damages. Such, we think, was the effect of the holding and charge of the learned trial justice.

Nor can we agree with the holding that the defendant could not purchase the mileage book or become the owner, of it, or acquire any property right in it and had none at the time he delivered -it .to the plaintiff.

We also think that certain testimony offered on the part of the defendant, to which we shall- call attention later, was improperly excluded.

1. As regar„ds the mileage book, we think the evidence established that the defendant was the owner of it. It is true that the railroad company was not required to transport any one but the person named as the original purchaser' thereon under the terms of its contract. But that provision could be insisted upon only by the railroad company, and could be waived by it. If the company saw fit to transport any other than the original purchaser on the ~ entire mileage, or any part of it, it could do so, and to that extent it would be relieved from transporting the original purchaser. And even if the railroad'company required a strict adherence to this limitation, permitting only the original purchaser to use the miléage book, it cannot be said that the defendant did not acquire any title to it, or that it had no value in his hands, for it was still good-for transporting the original purchaser.

The plaintiff, who acquired possession thereto.from the defendant to be used for a specific purpose, cannot -be heard to say that he is .under no obligation to return it to .the defendant. If the plaintiff himself had used it and it had been taken up by the railroad company, a different question would arise. There is no evidence in'the case that plaintiff' was asked to impersonate the original purchaser or to perpetrate any fraud upon the railroad company in using the book,' or that that was contemplated by either party.

The inference is quite to the contrary. For Mrs. Frazier rode upon the book to Corning without objection by the conductor, so far as the record discloses, and the defendant offered to prove that the plaintiff himself had before this taken mileage hooks to ride upon, and that at that time mileage books were in quite general use on this road by persons other than the ones, whose names appeared upon the books. But this proof was excluded against the defendant’s exception.

We think it was not immaterial, as charged by the tidal court, whether the mileage book was to be used by the plaintiff or by some one to whom he should give it. If the plaintiff used the book for a purpose other than that for which it was delivered to him and he became liable therefor, that fact, as well as the defendant’s ownership, was an important circumstance bearing upon the defendant’s liability.

2. The defendant offered to prove that he had Stated the facts to a justice of the peace in regard "to the matter and had talked the matter over with him before signing the information and making the deposition upon which the warrant was issued; that he was advised by the justice that the facts constituted the crime of larceny, and that"before going to a justice he consulted with a practicing attorney in Addison relative to the matter and that he was likewise, advised'by the attorney that the facts constituted the crime of larceny, and that the defendant believed that the plaintiff had committed larceny. •

But this evidence was excluded upon the plaintiff’s objection, to which the defendant excepted; although the defendant was permitted to testify that he had no .malice in making the information and deposition or in bringing the matter before the justice, and had no ill-will dr malice toward the plaintiff in any part of the proceeding which he took.

The exceptions to which attention has been called will be considered in connection with the holding and charge to which we have already adverted."

3. In actions for malicious prosecution the plaintiff- is required to prove not only that there was want of probable cause, hutas an independent fact that the prosecution was malicious upon the part of .the defendant, and so the defendapt 'may disprove either want of probable cause or malice as a d dense. (McKown v. Hunter, 30 N. Y. 625.) While we think in this case the facts within the knowledge of: the defendant and upon which he acted in prosecuting the plaintiff were not such as would reasonably induce the . belief that the plaintiff was guilty of larceny, and so there was no reasonable cause for the prosecution, still it does hot follow. as á matter of law that the jury should be required to find that the prosecution was instituted maliciously and award a verdict to the plain tiff. While the jury were at liberty to draw such an inference therefrom they were not bound to do so. (Jennings v. Davidson, 13 Hun, 393; Langley v. East River Gas Co., 41 App. Div. 470.)

Hence, it is proper to prove the advice of- counsel, even though there is a lack of probable cause upon the existence, as well as the degree of malice which prompted the defendant in the prosecution.

It is suggested that the affirmative allegations contained in the-answer are to the effect that the criminal proceeding as well as the civil action was. brought and prosecuted' to obtain the amount dne the plaintiff? Assuming that to'be so, we do not think the defendant was concluded thereby from getting evidence upon the question of malice.

• We have had occasion to examine these questions-in a recent case decided at the July term, 1906, by this court. (Fetzer v. Burlew, 114 App. Div. 650; 99 N. Y. Supp. 1100.) Mr. Justice Spbito, -speaking for the court, said: “ The refusal of the trial judge to permit the jury to pass upon the question of the -malice -of the defendant is more troublesome, and we think cannot be sustained. The jury might, have inferred malice from the iinwarranted apprehension of the defendant, but even' they were not bound to draw that inference. (Langleyv v. East River Gas Co., 41 App. Div. 470; Wanser v. Wyckoff, 9 Hun, 178.)

“ The arrest might have been without legal excuse and still not have been, willfully or maliciously caused by the defendant. He may have believed that the facts within his .knowledge were sufficient to authorize the arrest of the plaintiff. In any event the jury should have been permitted to consider the motives which influenced him. While there was ample evidence tending to show that the defendant was resorting to the criminal law to collect his debt and to establish his malicious purpose, the inferences from the facts proven were peculiarly within the province of the jury, and ought not to have been disposed of as matter of law.

“ The defendant endeavored to prove what occurred between the magistrate and himself at the time the information was sworn to, and the evidence" was excluded. We think this was error: (Parr v. Loder, 97 App. Div. 218.) In the most- favorable light for the defendant it did not constitute a defense, but was competent on the question of malice.”

In the case at bar the trial judge held that the plaintiff was enti- - tied to recover as a matter of law, and charged the jury that the arrest of one person upon the complaint of another without probable cause is deemed by law malicious; that there was an absence or probable cause, of any cause whatever, for the arrest of the plaintiff upon the charge of larceny ; that the facts were such that no person could conceive that he had committéd a criminal act; that for the arrest the law permitted the jury to award exemplary damages.

These statements were excepted to by the defendant, and upon his behalf the court was requested to charge the jury that they might render only a nominal verdict, but it was not charged,-and the defendant excepted.

We think the effect of this charge was not only that of directing .the jury to find a verdict for the plaintiff, but that such a verdict must be substantial. In any event, we think that under the circumstances of this case the jury were not bound to give more, than nominal damages, if such was their judgment, although it may well be tiiat the jury would not have reached that conclusion;

The judgment and order should be reversed and a new trial granted, costs to the appellant to abide the event.

All concurred, except Williams, J., who dissented; Nash, J., not sitting.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the facts having been examined and no error found therein.  