I am unable to concur in the conclusion adopted by a majority of the court. If it were within our province to consider the weight of evidence or the measure of damages I very probably might reach the result attained by them even if by a different route. But, excluded *Page 513 as we are from the consideration of those subjects, I think that it cannot be said as matter of law that plaintiff failed to establish lack of probable cause for his prosecution, and that, therefore, the judgment appealed from is erroneous.
I agree with the prevailing opinion that the evidence established beyond any question of fact the confession by Borchardt implicating plaintiff and that it was reasonable for defendants to take the same into account in connection with the other facts existing or appearing to exist. I also shall assume, without conceding it, that it was not incumbent upon defendants to make any inquiries of plaintiff which might have led to the explanation of the sums of money advanced to him by Borchardt and of the apparent intimacy between the two. I do not believe, however, that we can deprive plaintiff of the right to have a jury say whether the defendants had reasonable and probable cause to believe that he was helping Borchardt to embezzle from them in the light of the evidence that during this very period he was reporting to them irregularities in Borchardt's accounts with various customers.
Let me amplify somewhat the facts upon this point. Borchardt's embezzlements extended over a period of nearly three years and consisted in manipulation of his customers' accounts and of misappropriations of the collections therefrom. It is and was an essential element in defendants' theory of plaintiff's guilty participation in Borchardt's thefts that he suppressed the monthly statements which should have gone out to Borchardt's customers and which should have resulted in disclosure to defendants of the irregularities in the accounts. It is, of course, perfectly manifest that this suppression of statements was absolutely essential to the successful perpetration by Borchardt of his system of embezzlement. If the customers had received their statements showing that they had not been credited with the sums collected from them complaint at once would have been made to the firm with resulting detection. At the time of instituting their prosecution, defendants reasoned and even now argue most strenuously *Page 514 that plaintiff was the only unchanging factor in the process by which these statements should have been placed in the hands of customers and that he must have suppressed them. In assuming plaintiff's guilt no fact outside possibly of Borchardt's confession received greater consideration by defendants than the one that plaintiff received these statements from the bookkeeper and hence that he must have taken part in suppressing them and that, therefore, he was guilty of complicity in the crimes committed. Defendants' assumption of plaintiff's guilt inevitably involved the supposition that he was interested in and had taken part in suppressing any acts which might lead to the discovery of Borchardt's irregularities.
Now, upon the other hand, we have the fact that during this very period upon at least ten occasions verification statements sent out to Borchardt's customers resulted in complaints to the plaintiff of irregularities in those accounts and that he duly and promptly reported these things to Mr. Leggett. It is argued that this evidence of plaintiff is denied by Mr. Leggett; that it is unreasonable and must be untrue. I do not think, however, that it can be disposed of in any such way as that. Upon a consideration of the weight of evidence, I might fully agree with this argument advanced by the learned counsel for the appellants. But that question is not before us. The evidence is in the case, and however contradicted or however unreasonable, we must, for the purposes of this appeal, assume it to be true.
Neither can it be erased from the record within the principles of Linkauf v. Lombard (137 N.Y. 417) as being a mere scintilla of evidence. It is positive, direct testimony of a witness to facts claimed to be within his personal knowledge, and as such, if it is sufficient to raise any issue, must be disposed of by a jury.
Appellants' counsel says that this evidence of plaintiff is absurd upon the face of it; that defendants would never have retained Borchardt in their employ if they had learned of irregularities in his accounts. The answer in plaintiff's evidence to this suggestion, in substance, is that the irregularities *Page 515 were not very large, and that Borchardt made explanations which satisfied Mr. Leggett. That explanation may be reasonable or absurd. The reasonableness and truthfulness of the testimony is for the jury. (McDonald v. Met. St. Ry. Co., 167 N.Y. 66.)
In deciding, as is virtually being done, that plaintiff should have been nonsuited, we must assume the truthfulness of any evidence produced by him, and give him the benefit of all reasonable inferences therefrom. Doing this, we, therefore, have it that at the very time when defendants assumed he was aiding Borchardt in his embezzlements and suppressing statements to customers, thereby preventing detection of these embezzlements, plaintiff was permitting statements to go out to other customers, and was reporting to defendants the irregularities which were discovered as the result of such latter statements. In other words, at the time when defendants charged plaintiff with aiding and abetting Borchardt to embezzle collections from customers' accounts in a certain method, they knew, as we must assume upon this argument, that he had called to their attention upon many occasions precisely similar irregularities in Borchardt's accounts; that he had given to them the precise information which was liable to lead to the detection of the very crimes for which a prosecution was then being instituted against him.
It is not natural for a criminal, voluntarily and intentionally, to give the information which will lead to the detection of the crimes in which he is engaged. It does not seem probable that if plaintiff was engaged in the commission of the offenses for which he was being prosecuted that he would at the same time be giving the information which ought to lead to their discovery. It does not seem as if the person considering prosecution would have probable cause to believe that the person engaged in criminal offenses would at the same time commit such contradictory acts. At least it cannot be said as a matter of law that a prosecutor had probable cause to assume guilt in the presence of acts upon the part of the supposed criminal so at variance with his guilt. It would be the *Page 516 province of a jury as a question of fact to reach this conclusion, if it could be reached at all.
It is said in the prevailing opinion that the facts are undisputed, and that this being so the existence of probable cause is to be decided as a matter of law. If the facts are not only undisputed, but permit no divergent inferences, this is undoubtedly the rule; but where the facts, although not directly contradictory still are of such a nature that different men might draw different inferences, it is the general rule that a jury must say which inferences are to be drawn, and this rule, as I understand it, is applicable to such a case as this upon the issue of probable cause. (Salt Springs Nat. Bank v. Sloan,135 N.Y. 371, 384; Waas v. Stephens, 128 N.Y. 123; Heyne v.Blair, 62 N.Y. 19, 23; Fagnan v. Knox, 66 N.Y. 525; Scott v. Dennett Surpassing Coffee Co., 51 App. Div. 321.)
Therefore, compelled, as I think we are, to accept plaintiff's testimony as true, however unreasonable it might seem to us if permitted to weigh evidence, I believe it raised a question of fact as to the existence of probable cause, and that in the absence of other material errors the judgment must be affirmed.
CULLEN, Ch. J., GRAY, O'BRIEN and EDWARD T. BARTLETT, JJ., concur for reversal; WERNER and CHASE, JJ., concur with HISCOCK, J., for affirmance.
Judgment reversed, etc. *Page 517