We think the judgment appealed from cannot be sustained. While we are disposed to agree with the trial court that the undisputed facts show that the 'criminal proceeding brought against the plaintiff by the defendant was-without probable cause,- we cannot assent to the proposition that this alone -entitled the plaintiff to recover and required the jury to find a verdict for substantial damages. Such, we think, was the effect of the holding and charge of the learned trial justice.
Nor can we agree with the holding that the defendant could not purchase the mileage book or become the owner, of it, or acquire any property right in it and had none at the time he delivered -it .to the plaintiff.
We also think that certain testimony offered on the part of the defendant, to which we shall- call attention later, was improperly excluded.
1. As regar„ds the mileage book, we think the evidence established that the defendant was the owner of it. It is true that the railroad company was not required to transport any one but the person named as the original purchaser' thereon under the terms of its contract. But that provision could be insisted upon only by the railroad company, and could be waived by it. If the company saw fit to transport any other than the original purchaser on the ~ entire mileage, or any part of it, it could do so, and to that extent it would be relieved from transporting the original purchaser. And even if the railroad'company required a strict adherence to this limitation, permitting only the original purchaser to use the miléage book, it cannot be said that the defendant did not acquire any title to it, or that it had no value in his hands, for it was still good-for transporting the original purchaser.
The plaintiff, who acquired possession thereto.from the defendant to be used for a specific purpose, cannot -be heard to say that he is .under no obligation to return it to .the defendant. If the plaintiff himself had used it and it had been taken up by the railroad company, a different question would arise. There is no evidence in'the *833case that plaintiff' was asked to impersonate the original purchaser or to perpetrate any fraud upon the railroad company in using the book,' or that that was contemplated by either party.
The inference is quite to the contrary. For Mrs. Frazier rode upon the book to Corning without objection by the conductor, so far as the record discloses, and the defendant offered to prove that the plaintiff himself had before this taken mileage hooks to ride upon, and that at that time mileage books were in quite general use on this road by persons other than the ones, whose names appeared upon the books. But this proof was excluded against the defendant’s exception.
We think it was not immaterial, as charged by the tidal court, whether the mileage book was to be used by the plaintiff or by some one to whom he should give it. If the plaintiff used the book for a purpose other than that for which it was delivered to him and he became liable therefor, that fact, as well as the defendant’s ownership, was an important circumstance bearing upon the defendant’s liability.
2. The defendant offered to prove that he had Stated the facts to a justice of the peace in regard "to the matter and had talked the matter over with him before signing the information and making the deposition upon which the warrant was issued; that he was advised by the justice that the facts constituted the crime of larceny, and that"before going to a justice he consulted with a practicing attorney in Addison relative to the matter and that he was likewise, advised'by the attorney that the facts constituted the crime of larceny, and that the defendant believed that the plaintiff had committed larceny. •
But this evidence was excluded upon the plaintiff’s objection, to which the defendant excepted; although the defendant was permitted to testify that he had no .malice in making the information and deposition or in bringing the matter before the justice, and had no ill-will dr malice toward the plaintiff in any part of the proceeding which he took.
The exceptions to which attention has been called will be considered in connection with the holding and charge to which we have already adverted."
*8343. In actions for malicious prosecution the plaintiff- is required to prove not only that there was want of probable cause, hutas an independent fact that the prosecution was malicious upon the part of .the defendant, and so the defendapt 'may disprove either want of probable cause or malice as a d dense. (McKown v. Hunter, 30 N. Y. 625.) While we think in this case the facts within the knowledge of: the defendant and upon which he acted in prosecuting the plaintiff were not such as would reasonably induce the . belief that the plaintiff was guilty of larceny, and so there was no reasonable cause for the prosecution, still it does hot follow. as á matter of law that the jury should be required to find that the prosecution was instituted maliciously and award a verdict to the plain tiff. While the jury were at liberty to draw such an inference therefrom they were not bound to do so. (Jennings v. Davidson, 13 Hun, 393; Langley v. East River Gas Co., 41 App. Div. 470.)
Hence, it is proper to prove the advice of- counsel, even though there is a lack of probable cause upon the existence, as well as the degree of malice which prompted the defendant in the prosecution.
It is suggested that the affirmative allegations contained in the-answer are to the effect that the criminal proceeding as well as the civil action was. brought and prosecuted' to obtain the amount dne the plaintiff? Assuming that to'be so, we do not think the defendant was concluded thereby from getting evidence upon the question of malice.
• We have had occasion to examine these questions-in a recent case decided at the July term, 1906, by this court. (Fetzer v. Burlew, 114 App. Div. 650; 99 N. Y. Supp. 1100.) Mr. Justice Spbito, -speaking for the court, said: “ The refusal of the trial judge to permit the jury to pass upon the question of the -malice -of the defendant is more troublesome, and we think cannot be sustained. The jury might, have inferred malice from the iinwarranted apprehension of the defendant, but even' they were not bound to draw that inference. (Langleyv v. East River Gas Co., 41 App. Div. 470; Wanser v. Wyckoff, 9 Hun, 178.)
“ The arrest might have been without legal excuse and still not have been, willfully or maliciously caused by the defendant. He may have believed that the facts within his .knowledge were sufficient to authorize the arrest of the plaintiff. In any event the *835jury should have been permitted to consider the motives which influenced him. While there was ample evidence tending to show that the defendant was resorting to the criminal law to collect his debt and to establish his malicious purpose, the inferences from the facts proven were peculiarly within the province of the jury, and ought not to have been disposed of as matter of law.
“ The defendant endeavored to prove what occurred between the magistrate and himself at the time the information was sworn to, and the evidence" was excluded. We think this was error: (Parr v. Loder, 97 App. Div. 218.) In the most- favorable light for the defendant it did not constitute a defense, but was competent on the question of malice.”
In the case at bar the trial judge held that the plaintiff was enti- - tied to recover as a matter of law, and charged the jury that the arrest of one person upon the complaint of another without probable cause is deemed by law malicious; that there was an absence or probable cause, of any cause whatever, for the arrest of the plaintiff upon the charge of larceny ; that the facts were such that no person could conceive that he had committéd a criminal act; that for the arrest the law permitted the jury to award exemplary damages.
These statements were excepted to by the defendant, and upon his behalf the court was requested to charge the jury that they might render only a nominal verdict, but it was not charged,-and the defendant excepted.
We think the effect of this charge was not only that of directing .the jury to find a verdict for the plaintiff, but that such a verdict must be substantial. In any event, we think that under the circumstances of this case the jury were not bound to give more, than nominal damages, if such was their judgment, although it may well be tiiat the jury would not have reached that conclusion;
The judgment and order should be reversed and a new trial granted, costs to the appellant to abide the event.
All concurred, except Williams, J., who dissented; Nash, J., not sitting.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the facts having been examined and no error found therein.