This action was brought to recover damages for an alleged malicious prosecution. It appears that on the 16th day of March, 1885, the plaintiff was arrested upon the complaint of the defendant charging him with having willfully and maliciously broken the water-closet in a stable on Vanderbilt avenue, in the city of Brooklyn; that a trial *Page 344 was had before a Court of Special Sessions, held by FREDERICK S. MASSEY, Police Justice, and that the plaintiff was acquitted, after which this action was brought. After the testimony had been closed upon the trial herein, the defendant's counsel moved for a dismissal of the complaint, which was granted, and the plaintiff excepted.
The question to be determined upon this appeal is whether the plaintiff has established that there was a want of probable cause for such arrest.
It appears that one Cox was the owner of the premises in question; that the defendant is a carpenter and builder, and, in company with one Miller, had a contract from Cox to build a stable; that the defendant and Miller had entered into an agreement with the plaintiff, a plumber, to do the plumbing work in the barn for the sum of $190; that the plaintiff finished his work about the 1st of March, 1885, and was paid upon his contract the sum of $125, leaving a balance unpaid of $65; that he demanded this amount of the defendant, who refused to pay the same until the owner, Cox, should see the work and be satisfied with it; that thereupon the plaintiff procured Cox to come and examine the work, but Cox did not state whether he was satisfied with it, but told the plaintiff that he must look to the builder for his money; that the defendant was, subsequently, again requested to pay, and he stated that the stone forming the sill of the door had been cracked, through the carelessness of the plaintiff in putting in the sewer, and that he would not pay until the owner had returned from the south. No other objection to the work appears to have been made at that time. Thereafter an action was brought by the plaintiff against the defendant and one Miller, composing the firm of Miller How, before a justice of the peace, to recover the balance due upon the contract. The defendants answered, denying their liability, upon the ground that the materials furnished were not according to the specifications, and that the work was not done according to the contract. The plaintiff had put in the barn a water-closet. The specifications under the contract called for "a Hand water-closet." The *Page 345 one put in was a Hopper closet. On the Saturday before the arrest the plaintiff sent one Wedge, a plumber in his employ, to change the closets and put in the kind called for by the specifications. Wedge went to the barn and had the closet partially taken out when the defendant came in and "asked him what he wanted. He said he wanted to change the water-closet." The defendant then turned him out of the barn and refused to allow him to proceed with the work. On the next Monday morning the plaintiff, with another plumber, went to the barn for the purpose of completing the change of closets. They took with them a new closet such as was called for by the specifications and laid it upon the floor. The door of the closet being locked the plaintiff procured a locksmith to come and unlock it. He then took out the closet that was in, at which time the defendant appeared with a policeman and three or four other men. The plaintiff testified that the defendant asked what right he had to do that, and that he answered that he was making the change necessary. Thereupon the defendant picked up the new closet that was lying upon the floor and threw it out. As he did so the plaintiff rushed to catch the closet and the defendant called upon the policeman to arrest him, which he did, and took him to the station-house and from thence to the Police Court.
There is some conflict in the evidence as to what took place at the time the arrest was made. Our statement of it is in substance that given by the plaintiff and his witnesses. The defendant, however, concedes in his testimony that he saw the new closet pan there and that he undertook to carry it out of the barn. He would not admit that he knew what it was there for, and yet, we think, he did understand its purpose and what the plaintiff was attempting to do, and that this is apparent from the following quotations from his testimony: "Q. Now, when you went there you saw two water-closet pans, did you not? A. I did; I knew certainly; I knew there was only one there before. Q. Well, you stooped to take one of them and threw it out, did you not? A. I stooped *Page 346 to carry it out. Q. Well, it was the one that had not been there before, was it not? A. Yes. Q. Did you know who brought it there? A. I did not. Q. Did you have any idea who brought it there? A. What my ideas are is not the question, it is what I know. Q. Just answer the question; did you have any idea who brought it there? A. You might have brought it there for all I know. Q. That is not what I asked you; did you have any idea who brought it there? (By the Court): Who did you suppose brought it there that morning? A. Why, anybody might have brought it there. (By the Court): You supposed anybody brought it there? A. Why, certainly. Q. Who did you think brought it there? A. My inference would be that Anderson brought it there, but I did not know that he did. Q. Did you form some idea about what that was doing there or who brought it there when you stooped down to carry it out? A. I certainly knew that the water-closet had no business there. * * * Q. What did you suppose the plaintiff brought it there for? A. That is his business and not mine; I don't know what he brought it there for. Q. Did you have any idea on that subject at all? Witness: Well, I appeal to the court if I am to answer what my ideas are. (Court): Yes, certainly. Q. Did you have any idea what he brought it there for? A. He might have had a great many purposes. (By the Court): What was your idea that he brought it there for? A. At the morning call I had no idea in the excitement; I did not stop to ask what he wanted to do with it."
It consequently appears to us that the plaintiff was there upon the premises making a change of the water-closets so that they would conform to the specifications attached to his contract, and that the defendant knew from what had been told him by the plumber Wedge on the Saturday before, and what he saw and heard on the morning in question, that such was the plaintiff's purpose and intent.
Was there, therefore, probable cause which would justify the arrest? The trial court appears to have reached its conclusion upon a strict construction of the Code, for in dismissing *Page 347 the complaint the court says: "I think this constitutes an offense within the meaning of the section of the Code which has been called to my attention. If it had not been for that sectionI should have held the other way." The section referred to provides as follows: A person who willfully severs from the freehold of another, or of the people of the state, any produce thereof, or anything attached thereto, is punishable by imprisonment not exceeding six months or a fine not exceeding two hundred and fifty dollars, or both. (Penal Code, § 640, subd. 3.)
This provision is not, however, to be construed to include persons who intentionally sever from the freehold, with the knowledge and consent of the owner, or those who sever under a legal right. It was designed to meet the cases where a person willfully and maliciously severs from the freehold without right, for the purpose and with the intent to injure or destroy the property. In order, therefore, to convict the plaintiff under this section, it was necessary to show that he took out the closet that was in there without right so to do, and for the purpose of injuring or destroying the premises. His work had not been accepted by the owner or by the defendant, the contractor. He had the right to enter the premises in a peaceable manner and make his work conform to that required by the contract; and if this was his purpose and intent, and it was so understood by the defendant, there was no probable cause existing which justified his arrest. Payment of the balance under the contract had been refused. A suit had been commenced to recover such balance. In order to recover, it was important for the plaintiff to show that he had performed his work in accordance with the requirements of the contract. The plaintiff had the right to correct his work so that he could make good his claim and establish his right to recover in another action if not in the one pending. The defendant sought to defeat him in the action pending, as is apparent from the answer interposed, in which it was charged, as we have seen, that the materials furnished were not according to the specifications and that the *Page 348 work was not done according to the contract. There was a reason, therefore, why the defendant did not wish the closets changed while that action was pending. The plaintiff did not prosecute that action further, but allowed it to go down by not appearing on the adjourned day. Thereafter the defendant consented that the plaintiff might exchange the closets, which was done.
We are, therefore, of the opinion that a question was presented which should have been submitted to the jury, and that the court erred in granting the motion to dismiss the complaint, and by refusing the plaintiff's request to go to the jury upon the question of probable cause and malice.
The judgment should be reversed and a new trial granted, with costs to abide the event.