The judgment in the first action is conclusive upon two points :
1. That this defendant had no cause of action against the plaintiff.
2. That he had no real ground to cause the plaintiff’s arrest.
Presumptively the defendant acted in good faith, and, .therefore the plaintiff here had .to show want of probable cause. Whether there was evidence-touching that question- was for the trial court to decide.
If so, and if susceptible of an inference either way, it was for the jury to draw the .proper inference, unless there was such a lack of evidence in support' of a want of probable cause that a verdict for plaintiff should not stand. (Anderson v. How, 116 N. Y. 348.)
The testimony upon this trial was to the effect that the' plaintiff, as agent or broker for the defendant, who was a coal dealer, procured various orders for coal to be filled by the defendant under a contract, for a reasonable compensation therefor, and that he collected several of these bills and paid over the money to the defendant thereon, except as to a few of the bills, the amount of which he retained, and had, as the court held in the first -action, the right to retain as compensation for his" services.
The plaintiff procured some orders tip on which the defendant was unwilling to allow commissions because they were from his regular customers, and some orders that the defendant did not fill because he was under the impression that the plaintiff had retained money . . which he ought to have paid over. The plaintiff wanted twenty-five cents per ton for the orders he procured and five per cent for the money he collected; the defendant thought twelve and a half cents per ton for the orders was enough and that no charge should. be made for collections. Thus differences arose between the parties.
*161The evidence is conflicting as to the defendant’s knowledge of the amount of the orders obtained by the plaintiff. The defendant had the impression that the plaintiff was withholding moneys he ought to pay over. How far that was the plaintiff’s fault, or his own, depends upon the inferences to' be drawn from conflicting testimony.
There was no evidence that this plaintiff was not responsible or that he rendered a false account, and the former judgment is conclusive that he did not wrongfully ¿retain any money.
We cannot say that the jury might not infer that the defendant, in prosecuting the plaintiff and in causing his arrest, was rash, hasty and passionate, and that he did so to force him to a settlement upon his own terms, right or wrong.'
Probable cause is defined as such a state of facts and circumstances as would lead a man of ordinary prudence acting conscientiously, impartially, reasonably and without prejudice upon the/facts within his knowledge, to believe that the person accused is • guilty. (Heyne v. Blair, 62 N. Y. 19, 22.)
We think the evidence bore upon just that test; whether under it the defendant was in fault, was a question for the jury. Whether, if the facts had been as charged by the defendant, an order of arrest should have been granted, we need not say; because, as the facts actually were, he was not entitled to such an order, and because the evidence will not j ustify the finding that he knew that the facts charged by him did not entitle him to the order. Whether they did was for the judge to decide to whom he applied for the order.' Ho motion was made to vacate. Because of the order, the charge here is not false imprisonment, but malicious prosecution; that is, the malicious and inexcusable use of legal process to plaintiff’s injury. If the defendant had probable cause, lie- was excusable, otherwise not.The evidence bore upon that question, and the jury should have been permitted to solve it.
The judgment should be reversed and a hew trial granted, with costs to abide the event.
All concurred.
' Judgment reversed and á new trial granted, costs to abide the event.