Merkley v. Cline — 145 A.D. 692

Majority

p. 692

George L. Merkley, Respondent, v. Raymond L. Cline, Appellant.

Third Department,

June 28, 1911.

Headnote

Malicious prosecution — prohahle cause — charge — holding plaintiff for grand jury — presumptive evidence — definition.

Although, strictly speaking, í ‘ presumptive ” evidence has a broader significance than “primcC facie” evidence, still, as ordinarily used, the terms are practically synonymous.

In an action for malicious prosecution it is error to refuse to charge that the fact that plaintiff was held to await the action of the grand jury is presumptive [used in the sense oí prima faeie] evidence that defendant had probable cause for procuring his arrest.

Appeal by the defendant, Eaymond L. Cline, from a judgment of the Supreme Court in favor of the plaintiff, entered in the„ office of the clerk of the county of Montgomery on the 6th day of-July, 1910, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Edward R. Hall, for the appellant.

George G. Butler, for the respondent.

The action is for malicious prosecution. The plaintiff was arrested and taken before a magistrate and after examination was held to await the action of the grand jury.

Aside from the damages suffered .by the plaintiff the principal question litigated was the existence of probable cause for the arrest of the plaintiff.

At the close of the charge the defendant’s counsel asked the learned trial court to instruct the jury “ that the fact .that the justice held the plaintiff to await the action of the grand jury is presumptive evidence of probable cause;” This was refused and an exception taken.

It is expressly held in Schultz v. Greenwood Cemetery ( 190 N. Y. 276 ) that the holding of a plaintiff in an action for

p. 693

malicious prosecution, by a magistrate, after examination into the facts, to await the action of the grand jury, is prima facie evidence of probable cause for prosecution.

The language of the request was that it was “presumptive evidence5’ of probable 'cause’ Strictly speaking, “presumptive ” evidence has a broader significance than “prima facie ” evidence, but as ordinarily used the terms have practically the same meaning. The law gave to the defendant, notwithstanding the plaintiff was obliged to prove want of probable cause, such benefit upon that issue as might flow from the fact that a magistrate after examination had held the plaintiff to await the action, of .the grand jury. The request to charge being substantially correct in form we think it was such error to refuse it as requires a reversal of the judgment.

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

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

Cases cited

Schultz v. Greenwood Cemetery 190 N. Y. 276 N.Y. 1907-12-20 p. 692