Sayles v. Hoetzel — 48 N.Y. St. Rep. 205

Majority

p. 205

Manly T. Sayles, Resp’t, v. Charles F. Hoetzel, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 21, 1892.)

Headnote

1. Malicious prosecution—Weight of evidence.

In an action for malicious prosecution, the complaint and deposition ■ made by defendant to procure the plaintiff’s arrest is entitled to greater weight than testimony of the magistrate as to- what defendant stated when he applied for the warrant.

2. Same—Probable cause. ¡¡

In such an action there was evidence tending to show that defendant did not believe that plaintiff was guilty of stealing the articles lie took, but was aware that plaintiff claimed to own them, and that the object of the prosecution was to compel plaintiff to return the property. Beld, that the jury were warranted in finding a want of probable cause for the prosecution.

3. Trial—Objections to evidence.

Objections to the admission of evidence which fail to state the ground for the objection present no question for review.

Appeal from a judgment of the supreme court, entered in the clerk’s office of Wayne county on the 20th day of November, 1889, and also from an order denying a motion for a new trial on the court’s minutes.

S. K. Williams, for app’lt; E. D. Miller, for resp’t.

This action was for malicious prosecution The defendant caused the arrest of the plaintiff for the crime of petit larceny. He presented to the magistrate when he applied for the warrant his own affidavit, in which he charged the plaintiff with •entering defendant’s barn in,,the village of .Newark on the 21st day of .March, 1889, and feloniously taking and carrying away several articles of personal property described in the affidavit, of the value of eight dollars, the property of the defendant. The •affidavit contains the statement “And that said Sayles was remonstrated with as to the taking thereof but would not refrain therefrom."

The magistrate, as he was required to do by § 148 of the Code of Criminal Procedure, took the defendant’s deposition in writing and caused it to be subscribed by him.

It is not claimed by the defendant’s counsel but that the deposition sufficiently charged the plaintiff with the commission of the srime of larceny, but his contention is, that the testimony of the magistrate upon the trial shows that the facts stated by the defendant to him when he applied for the wan-ant failed to make a •case for a warrant, and were not as full as those contained in the complaint and deposition. It may well be that the magistrate's recollection was at fault;, ceatainly the complaint and deposition drawn at the time and signed and verified by the defendant was better evidence of what occurred than the recollection of the magistrate, eight mouths after the occurrence. And further, the case shows that the defendant’s counsel conceded upon the trial, that the proceedings to obtain the warrant and proceedings under it were regular.

The defendant unquestionably was responsible for the arrest .-and prosecution of the plaintiff.

The case of Dennis v. Ryan, 65 N. Y., 406 , to which our attention is called by the defendant’s counsel, is not an authority to the •contrary.

The facts developed upon the trial quite satisfactorily established that the defendant caused the prosecution of the plaintiff maliciously and without probable cause. He did not believe that the plaintiff was guilty of stealing the article he took from the barn of ,the defendant. He was fully aware when he made the complaint that plaintiff claimed to own the articles he took; there was ample evidence to justify the jury in so finding.

There was evidence tending quite strongly to show that the object of the prosecution on the part of the defendant was to compel the plaintiff to return the property to his possession.

The testimony, as is not uncommon in such cases, took a pretty wide range, some of it did not have much bearing upon the issues being tried.

Most of the defendant's objections failed to state any ground for the objection, and hence fail to present any question for review^

YYe do not find anything in the exceptions calling for a reversal of the judgment.

The charge of the court clearly and correctly stated the rules of law governing the case.

p. 207

While we should be better satisfied had the verdict been for a less amount, we cannot say, under all the circumstances, that th& verdict for $1,000 is so excessive as to justify us in granting a new trial for that reason. \

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.