Finsilver v. Still

Merrell, J.

(dissenting). This action is to recover damages for malicious prosecution. The defendant contends that the plaintiff failed to allege any sufficient facts to meet the decision of the Court of Appeals in Graham v. Buffalo General Laundries Corp. (261 N. Y. 165). In that case there was a bare allegation in the complaint that the prosecution of the plaintiff by the defendant was without probable cause. The Court of Appeals held in that case that the bare allegation in the complaint of want of probable cause was insufficient when the complaint on its face showed probable cause; that on the preliminary hearing before a magistrate on the charge of felony the magistrate held the plaintiff to await the action of the grand jury, which failed to indict. In Graham v. Buffalo General Laundries Corp. the Court of Appeals held, on the authority of Hopkinson v. Lehigh Valley R. R. Co. (249 N. Y. 296, 300), that the holding of the accused by a magistrate after examination into the facts established prima facie probable cause for the prosecution. I think the case at bar was clearly distinguishable from Graham v. Buffalo General Laundries Corp. (supra) and that the allegations of the complaint in' the present action fully meet the requirements of the Court of Appeals in that case. To overcome the presumption of probable cause arising from the fact that the plaintiff was held by the magistrates for the action of the grand jury, the plaintiff alleges in the present complaint in the third and fourth paragraphs, as follows:

Third. Upon information and belief that in making the charges both before the aforesaid Magistrates and Grand Jury of the County of New York, the defendant misrepresented and falsified the evidence, and withheld information and facts which would have affected the result before the aforesaid Magistrates and had the defendant not misrepresented or falsified the evidence, or with*92held the aforesaid information and facts, the plaintiff would not have been held for action by the Grand Jury of the County of New York.
“Fourth. That thereafter and on or about the 28th day of February, 1933, the defendant maliciously and without any probable cause, and with malicious intent to injure plaintiff in his good name and credit and to bring him into public disgrace and subject him to trouble and expense, voluntarily again charged the plaintiff before the Grand Jury of the County of New York with said offense, and that thereupon, the said Grand Jury of the County of New York, declined and refused to find or present an indictment against the plaintiff, and duly dismissed said charge and said prosecution was thereby wholly terminated and plaintiff’s bond was discharged and his fingerprints ordered returned. That said criminal charge so made by defendant against plaintiff was wholly false and untrue as the defendant then well knew.”

The appellant contends that the allegations of the complaint are fatally defective in that no facts are stated by the plaintiff which induced the magistrate to hold the plaintiff. In Graham v. Buffalo General Laundries Corp., Chief Judge Pound, writing for the Court of Appeals (at p. 167), stated as follows: The complaint must state facts sufficient to constitute a cause of action. When all the facts stated, if admitted, would not allow a recovery, the complaint is bad. The holding of the accused by the magistrate shows probability of guilt and thus rebuts and overcomes the general averment of want of probable cause which is usually sufficient as an allegation of fact but here becomes a mere ‘ opprobrious epithet.’ ” Later on Chief Judge Pound (at p. 168) wrote as follows: “ The allegations of the complaint that the plaintiff was held after a hearing by the magistrate, unexplained and uncontradicted, establish probable cause for plaintiff’s arrest. The pleader should be required by appropriate allegations to overcome the effect of his admissions of the existence of probable cause.”

I think the allegation contained in the third paragraph of the complaint that in making the charges, both before the magistrates and the grand jury of the county of New York, the defendant misrepresented and falsified the evidence, and withheld information and facts which would have affected the result before the aforesaid Magistrates,” are allegations of ultimate facts and are entirely sufficient to overcome the presumption that the plaintiff was held with probable cause. The allegation contained in the fourth para* graph of the complaint that “ with malicious intent to injure plaintiff in his good name and credit and to bring him into public disgrace and subject him to trouble and expense, voluntarily again *93charged the plaintiff before the Grand Jury of the County of New York with said offense ” (grand larceny), was also an allegation of fact. I do not think it is necessary, and certainly there was no requirement in the recent decision of the Court of Appeals in Graham v. Buffalo General Laundries Corp. (supra) that the plaintiff should be required to allege more than ultimate facts. There was no requirement in said case that the plaintiff should set forth the evidence upon which he depended. I think the complaint in this case was sufficient where it alleges that the plaintiff was held by the magistrates as the result of false evidence and from the withholding of information and facts which would have resulted in his discharge by the magistrates. It surely could not have been the intention of the Court of Appeals in Graham v. Buffalo General Laundries Corp. (supra) to require a pleader to set forth the evidence as to misrepresentation and falsification and of the information and facts which the defendant withheld, and which misrepresentation and falsification and the withholding of information and facts resulted in plaintiff’s being held. To do more than plead the ultimate facts as the plaintiff did in the complaint herein, the plaintiff would be compelled to disclose his evidence. That he should not be required to do. (President & Directors of Manhattan Co. v. Morgan, 199 App. Div. 767; Sherman v. International Publications, Inc., 214 id. 437.) In effect, the complaint here charged that the defendant gave false testimony and misrepresented and falsified the evidence before the magistrate and grand jury, and withheld information and facts from the magistrate. Such ultimate facts when proven will overcome the admission of probable cause resulting from plaintiff’s being held by the magistrate. (Graham v. Buffalo General Laundries Corp., 261 N. Y. 165; Hopkinson v. Lehigh Valley R. R. Co., 249 id. 296.) In Hopkinson v. Lehigh Valley R. R. Co. (supra) the Court of Appeals (at p. 300) said; The plaintiff in his malicious prosecution case must, therefore, meet this prima facie evidence of probable cause by showing that the defendant did not make a full and complete statement of the facts either to the magistrate or to the district attorney; has misrepresented or falsified the evidence, or else has kept back information or facts which might have affected the result.”

The case of Green v. General Cigar Co., Inc. (238 App. Div. 638), is clearly distinguishable from the case at bar, and certainly is not authority for reversal of the order appealed from. In that case no facts whatever were alleged, the complaint merely alleging lack of reasonable or probable cause. This court very properly held that mere allegations that the charges were false and that the *94defendant in that case acted maliciously and without probable cause were insufficient.

If defendant requires a more definite statement of the facts he may obtain such information through a bill of particulars in a proper case.

In my opinion, the allegations of the complaint were sufficient to set forth a cause of action for malicious prosecution.

The order appealed from should be affirmed.

Order reversed, with twenty dollars costs and disbursements, .and motion granted, with leave to the plaintiff to serve an amended complaint within twenty days from service of order, upon payment of said costs.