I dissent from the affirmance on the ground that the court ruled as matter of law that the acquittal of the plaintiff by the magistrate was conclusive that he was not guilty of the crime; and an exception to that charge was duly taken by the defendants. The alleged misdemeanor was committed in the presence of the defendant Ryan, who arrested the plaintiff, and I am of opinion that an acquittal is neither binding on the defendant in an action for malicious prosecution, nor in an action for false arrest (Schultz v. Greenwood Cemetery, 190 N. Y. 276; Burt v. Smith, 181 id. 1; Danzer v. Nathan, 145 App. Div. 455; Barber v. Gould, 20 Hun, 446; Turner v. Dinnegar, Id. 465; George v. Johnson, 25 App. Div. 125; Loughman v. Long Island R. R. Co., 83 id. 629. See, also, Rown v. Christopher & Tenth St. R. R. Co., 34 Hun, 471; Platt v. Bonsall, 136 App. Div. 397); and in the case at bar the evidence, if believed by the jury, would have warranted them in finding that the plaintiff was guilty, notwithstanding his acquittal by the magistrate.