Duckett v. Hofferberth — 144 N.Y.S. 952

Majority

p. 952

DUCKETT v. HOFFERBERTH.

(Supreme Court, Appellate Division, First Department.

December 26, 1913.)

Headnote

Appeal and Ebbob (§ 1171^[1] )—Nominal Verdict.

Where the complaint in tort should have been dismissed, the court, on the appeal of plaintiff from a judgment for one cent, will not reverse the judgment.

[Ed. Note.—For other cases, s,ee Appeal and Error, Cent. Dig. §§ 4546-4554; Dec. Dig. § 1171.*]

p. 953

Appeal from Trial Term, New York County.

Action by Alfred W. Duckett against Charles i\ Hofferberth. From a judgment granting insufficient relief, and from an order denying a new trial, plaintiff appeals.

Affirmed.

See, also, 143 N. Y. Supp. 1114 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-LIN, DOWLING, and HOTCHKISS, JJ.

Joseph M. Herzberg, of New York City, for appellant.

Samuel H. Evins, of New York City, for respondent.

We think that the plaintiff failed to sustain a cause of action for malicious prosecution. So far as any prosecution was instituted by the defendant, the plaintiff failed to show a lack of probable cause, and the complaint should have been dismissed. Under such circumstances, the court is not required to reverse a verdict for the plaintiff for one cent.

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