(dissenting.) According to well-recognized authorities, the burden was upon the plaintiff to establish by his evidence “a want of probable cause for the prosecution instituted against him, and malice on the part of the defendant.” Heyne v. Blair, 62 N. Y. 19. In Miller v. Milligan, 48 Barb. 47, the court, in dealing with the rule, used this expression: “The plaintiff must establish that there is no color for the charge.” It is equally well established by authority that probable cause does not depend upon the actual state of a case in point of fact, but in the honest and reasonable belief of the party commencing the prosecution upon the facts, circumstances, and appearances within his own knowledge and belief at the time of instituting the prosecution. In Stewart v. Sonneborn, 98 U. S. 195, it was said: “The conduct of the defendants is to be weighed in view of what appeared to them when they filed their petition in the bankrupt court; not in the light of subsequent appearing facts. Had they reasonable cause for their action when they took it ? Not what the actual fact was, but what they had reason to believe it was.” That case is also an authority to the effect “that malice alone, if there was such, is insufficient to entitle the plaintiff to recover;” and also that “although the jury may infer malice from the want of probable cause, proof even of express malice will not justify the inference that probable cause did not exist.” And in Hazzard v. Flury, 120 N. Y. 223, 24 N. E. Rep. 194, it was said in the course of the opinion (page 227, 120 N. Y., and page 195, 24 N. E. Rep.:) “Probable cause maybe founded upon misinformation as to the facts; not as to the law.” In the course of the opinion the judge refers to Carl v. Ayers, 53 N. Y. 14, approvingly, and takes from the opinion in that case the following: “If the apparent facts are such that a discreet and prudent person would be led to the belief that a crime had been committed by the person charged, he will be justified, though it turns out that he was deceived, and that the party accused was innocent.” When the motion for a nonsuit was made and decided there were in the evidence before the court several facts and circumstances relative to the action of the defendants in commencing proceedings in replevin on the 30th of November, 1882, to recover from the plaintiff here the property which had passed to his possession under negotiations for the purchase thereof from the plaintiffs in the replevin action, who are the defendants here. In considering the motion made at the circuit, the trial judge was called upon to determine whether all the facts and circum*208■stances shown by the evidence (aliunde conflicting evidence) were such as to induce a belief in the plaintiffs in the replevin action that the proceedings could be maintained upon reasonable grounds, and that they were such as “to warrant a cautious man in his belief that the plaintiffs had a right to maintain replevin.” Anderson v. How, 116 N. Y. 336, 22 N. E. Rep. 695; Thaule v. Krekeler, 81 N. Y. 428. His conclusion at the circuit was that the plaintiff failed to show a want of probable cause. The plaintiff was in possession of the defendant’s goods, which he had received upon a credit. The defendants were informed of facts and circumstances tending to give rise to doubt and suspicion of the plaintiff’s ability or intent to pay for the goods. When they sought the plaintiff, and communicated to him their doubts and suspicions, he promptly refused to make a statement of his affairs, or to indicate his financial standing and ability, and to furnish such an explanation as would dissipate the conviction formed that the purposes and intents of the plaintiff were fraudulent, rather than innocent, and not in accordance with the ordinary course of an honest debtor. It does not seem unusual or unreasonable that the defendants should seek to recover their goods with such information as they possessed in respect to the plaintiff, coupled with his absolute refusal to disclose his financial affairs and ability to pay the defendants some $900 for the property which he retained of the purchase from them.
2. After the replevin papers were placed in the hands of the sheriff, and while he was about executing them, the plaintiff sought the service of Mr. George Barrow, an attorney, who resided at Skaneateies, who visited the store while the sheriff was selecting the goods required, to be taken in virtue of the replevin proceedings. When Mr. Barrow reached the store he entered into a conversation with Mr. Stern, who was then acting as attorney for the defendants, and Mr. Barrow states that that conversation “ was when they were in the act of taking the goods. ” The details of that conversation, were objected to and apparently excluded on the ground that they were not in the presence of the defendant Wile, and that the conversation was after the action was commenced. The plaintiff took an exception to the ruling excluding the details of that conversation, and calls our attention to Fagnan v. Knox, 66 N. Y. 525. In that case it was said that if a party “had knowledge of facts which would explain the suspicious appearances, and exonerate plaintiff, he cannot justify the prosecution by putting forth the prima faeie circumstances, and excluding those thus within his knowledge tending to prove innocence.” Inasmuch as the action had been commenced before the conversation ensued between the attorneys, it is not apparent how the conversation between the attorneys could shed any light upon the determination theretofore made by the defendant under the advice of his attorney that there were reasonable grounds upon "which to predicate the proceedings for the recovery of the property. In making that determination it is evident the defendant Wile acted upon such information, knowledge, and the conduct of the plaintiff in refusing to make a statement or to disclose the conduct of his affairs prior to the time when the plaintiff sent for and employed Mr. Barrow in his behalf. In the course of the opinion delivered by the trial judge at the time of granting the motion he said: “The question is whether there is an absolute want of facts and circumstances developed by the evidence in this case that strips it entirely of every element of probable cause", so as to charge the defendant in the action with damages. It does not seem to me that the evidence tends to that result; that the most that can be said about the evidence is that the parties, the defendants in this action, predicated their right to a restoration of the goods which were sold in August and delivered in October upon the ground that he got them with intent not to pay for them; and, having obtained the goods, they then discovered certain facts and circumstances from which they concluded that such an intent existed, to wit, that the plaintiff in this action (the defendant in the replevin suit) was buying largely of goods, stocking his store *209up, with the intention of not paying debts which he had contracted. It is a matter of no consequence whether there was a good legal ground for entertaining that opinion. The question is, had he a right, upon the undisputed evidence, so far as shown by this case, to entertain an honest idea on his part that he could restore those goods to himself upon that ground ? He may have been mistaken. His counsel may have.given him improper advice,—advice which could not be sustained in court; but it does not seem to me that it can be asserted with any degree of confidence that there is that absolute want of a right on the part of the plaintiffs in the replevin suit (the defendants here) to bring that action that should charge them in damages, because it failed upon the trial; nor do I see any evidence in this case that justifies or would justify the jury in finding malice in this matter.” These comments seem to be justified by thé evidence found in the appeal book.
The foregoing views lead me to advise an affirmance of the nonsuit.