de Matteis v. la Maida

substituted for it a charge to the effect that plaintiff had feloniously stolen from the defendant a pair of diamond earrings. An examination upon such charge was had, resulting in the plaintiff’s acquittal. But defendant claimed upon the trial, and now insists, that he was entitled to a dismissal of the complaint at the close of plaintiff’s case, because, as he alleges, the plaintiff had failed to meet the burden resting upon him of showing want of probable cause for the action taken by, and malice on the part of, the defendant. Anderson v. How, 116 N. Y., 336 ; 26 St. Rep., 787 . It then appeared, without contradiction, that for a period of four years prior to the arrest plaintiff had been doing business for and with the defendant on the following basis: In the morning of each day defendant gave to plaintiff a box containing jewelry for sale, the cost price of each article being designated by defendant. Plaintiff could not sell below this cost price, but was to divide with defendant whatever he could realize above it. At the close of each day plaintiff gave to the defendant an account of the proceeds received, and returned such jewelry as. remained unsold. Cash for the goods was obtained in some instances, and in others the sales were on the installment plan. Some days prior to plaintiff’s arrest he informed defendant of his intention to sail for Europe on the 16th of September, with his wife, who was then in ill health, and made application to him for steamer tickets which defendant had for sale. Defendant asked him to wait for another month, and, finding that he would not, kept postponing from day to day a settlement of the accounts between them, but did not in any way intimate that he was dissatisfied with the manner in which plantiffi had conducted the business. He remained the greater part of the day preceding the one upon which he was to sail with the defendant at his place of business, but nothing was said by the defendant suggesting that he regarded himself as having been wronged by the plaintiff; still, just before the hour of sailing arrived, he was arrested on the first charge, which was subsequently withdrawn, and another one substituted in its place, upon which an examination was had. This latter charge was to the effect that he had stolen a pair of diamond earrings of the value of thirty dollars. Of that charge plaintiff was acquitted, and in this action he describes the transaction which was the basis of defendant’s last charge as follows:

“ I told the defendant that Frank Savetto wanted to buy a pair of earrings, and he gave me three pairs to show him. Savetto took them to his wife, who selected one pair, returning to me the other two, which I gave to defendant, telling him that he would pay for them in fifteen days.”

Savetto testified in plaintiff’s behalf that he was acquainted with both plaintiff and defendant, and that he purchased the earrings upon a credit of fifteen days. Had not paid the plaintiff anything for them. It was. defendant’s contention during the criminal prosecution of the plaintiff that he had sold the earrings to Savetto, received payment therefor, and kept the money. Savetto not only disputed such contention, as 'did the plaintiff, but he further testified that the defendant came to his house after plain

tiff’s arrest, and at a late hour of the night, and tried to persuade Mm to say that he had paid plaintiff for the jewelry. Uoon this evidence, standing as it did at the close of plaintiff’s case uncontradicted, it is clear that the court could not have held as matter of law that the defendant had such reasonable ground of suspicion, supported by circumstances of such strength, as to warrant, a cautious man in believing that plaintiff was guilty of the offense with which he was charged. It is true that the evidence presented on the part of the defendant contradicted in substantial respects the evidence of the plaintiff and his witnesses, but that, of course, did not operate to take away the right, which we have said plaintiff had established, to go to the jury. It presented the further question for the jury to pass upon whether plaintiff’s testimony was true. If true, the situation was precisely the same as when plaintiff rested. The appellant calls our attention to what he alleges to be an error in the admission of testimony, but, as no exception was taken, we need not consider it.

The judgment should be affirmed, with costs.

All concur.