English v. Major — 36 N.Y. St. Rep. 69

Majority

p. 69

Mary English, Resp’t, v. William Major, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed February 20, 1891.)

Headnote

Malicious prosecution—Evidence.

Defendant caused the arrest of plaintiff on a charge of placing poison on the ground adjacent to the boundary line between their lands, with intent to poison defendant’s chickens. Plaintiff was acquitted In an action for malicious prosecution, defendant testified that on returning home he found his wife crying, and that' he employed one M. to investigate the matter of the death of the chickens; that M. informed him that he found meal along plaintiff’s fence and that he had a conversation with plaintiff. He was not allowed to testify as to the conversation with his wife nor as to what M. stated to him was the conversation which he had with plaintiff. Held, error; that as such communications were made prior to the commencement of the proceedings complained of, they were admissible on the question of good faith on the part of defendant in taking such proceedings.

Appeal from a judgment entered in Onondaga county June 2, 1890, upon a verdict in favor of the plaintiff for sixty-five dollars, at the Onondaga circuit, May, 1890, and from an order denying a motion on the minutes for a new trial.

Action for malicious prosecution. On the 26th day of July, 1889, upon the complaint of the defendant, charging the plaintiff with the offense of poisoning animals, the plaintiff was arrested, taken before a magistrate and, on the 3rd September, 1889, was tried and acquitted. Thereupon this action was commenced.

George Barrow, for app'lt; II. B. & G. W. Driscoll, for resp’t.

Upon the trial of this case the plaintiff gave evidence showing in effect that she was innocent of the charge made against her by the defendant. She then rested and defendant made a motion for a nonsuit, which was denied and exception taken. The plaintiff had not shown a want of probable cause and had not made a case for recovery. Thaule v. Krekeler, 81 N. Y., 433 . The defendant, however, instead of relying on his exception, proceeded with evidence upon his part and thereafter the plaintiff gave further evidence. So that at the close of the evidence a case was probably presented for the action of the jury within the rule laid down in Heyne v. Blair, 62 N. Y., 19 . The case was, however, a close one, and in that view some rulings upon evidence, about which the defendant complains, are to be more closely considered.

The plaintiff and defendant occupied adjoining village lots. The defendant kept chickens, and upon the evening of July 24, 1889, quite a number of them were found dead along the line between the parties. The charge against plaintiff was that she had

p. 70

thrown poison upon the ground adjacent to the line with the intent to poison the chickens, and which they had in fact eaten. The defendant was called as a witness on his own behalf, and testified that he returned home that evening about six o'clock and found his wife crying. He was then asked to state what occurred that evening in reference to conversation with his wife and in reference to chickens. The conversation was objected to by the plaintiff as hearsay and incompetent and inadmissible, and was excluded and exception taken. The defendant further testified that the next morning he employed one McLoughlin to investigate the matter; that the latter did so and informed defendant that he found meal or something of that kind along plaintiff’s fence, and also told defendant that he had a conversation with the plaintiff. The defendant was then asked the question: What did he state was the conversation which he had had with Mrs. English ? This was objected to as hearsay and excluded and exception taken.

In Miller v. Milligan, 48 Barb., 30 , 47, it is said that the real question is whether the defendant had reasonable ground to believe that the plaintiff was guilty of the charge, and this belief may be founded upon facts within the knowledge of the party or upon information derived from other persons. In 2 Addison on Torts (Dudley & Baylies’ ed.), 766, it is said that in order to show good faith on the part of the defendant, it is competent to him to prove any communication that may have been made to him prior to the commission of the grievance, to show the impression made on his mind and the materials he had before him in forming an opinion. A like view was taken in Bacon v. Towne, 4 Cushing, 217, 240, and in Lamb v. Galland, 44 Cal., 609 .

Both of the communications excluded very evidently related to the matter in controversy, and were made to the defendant before he commenced any proceedings against the plaintiff. The record shows that McLoughlin was afterward called as a witness by the defendant, and testified generally that he stated to defendant the conversation he had with the plaintiff. This did not cure the error, if it was one, in not permitting the defendant to state it, especially as the credibility of McLoughlin was attacked. The defendant had a right to give his own testimony on the subject.

We think the rulings above referred to were not correct, and that as the case stands they are of sufficient importance to call for a new trial.

Judgment and order reversed on the exceptions and new trial ordered, costs to abide the event.

Hardin, P. J., and Martin, J., concur.