The elements of an action for malicious prosecution are clearly specified in Gastman v. Myer (285 App. Div. 611). At page 612 the court said: “ It is elementary that in order to make out a cause of action for malicious prosecution arising out of a criminal proceeding, plaintiff must allege and prove (1) that defendant instituted or continued a criminal proceeding against plaintiff; (2) malice; (3) absence of probable cause; (4) termination of the proceeding in favor of plaintiff; and (5) damages.”
It is conceded by the defendant that the plaintiff was sub-' jected to criminal prosecutions and that such prosecutions terminated in his favor. The only open questions, aside from damages, are whether there was no probable cause for his prosecutions and whether there was malice on the part of the defendant.
“ Want of probable cause and malice are seldom established by direct evidence of an ulterior motive. They often rest upon circumstances such as the relation of the parties and the object sought or accomplished. Where malice or any improper or wrongful motive, or lack of probable cause exists it may be inferred that the act was malicious.” (Dean v. Kochendorfer, 237 N. Y. 384, 389.)
‘ ‘ Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. The want of probable cause does not mean the want of any cause, but the want of any reasonable cause, such as would persuade a man of ordinary care and prudence to believe in the truth of the charge. * * * Belief alone, however sincere, is not sufficient, for it must be founded on circumstances which make the belief reasonable.” (Burt v. Smith, 181 N. Y. 1, 5-6.)
“ If the apparent facts are such ‘ that a discreet and prudent person would be led to the belief that a crime has been committed by the person charged, he will be justified, although it turns out that he was deceived and the party accused was innocent. ’ * * *
*247" But where it is demonstrated that there is a dispute about either the true state of facts, or the inferences to be drawn by a reasonable person from the facts which led to the prosecution, the uniform rule has been to require there be a factual resolution at a trial. ’ ’ (Munoz v. City of New York, 18 N Y 2d 6, 10-11.)
The dissenting opinion argues that whether the police acted maliciously and without probable cause depends on whether Agrámente identified plaintiff as the seller. This is clearly not so, because the record is crystal clear that, while the lineup in which plaintiff was placed was held at the 45th Precinct in The Bronx, on July 10, 1958, at about 9 o’clock at night (R., p. 171), the plaintiff was actually placed under arrest at his home at about noon of the same day, many hours before the lineup was • held. There can be no question about the fact that the plaintiff was arrested at that time. This appears to have been conceded at the trial by the Corporation Counsel, who said:
" Now, if a false arrest, or if an arrest of any kind took place at all, it must have taken place on the 10th of July.
“ Now, on these facts it could be urged, and it would be urged, I would imagine, by the plaintiff, that the arrest of Graham took place some time in the early afternoon when the detectives went up to his house and brought him down for questioning at Broome Street. With respect to that it is the contention of the City that this was a detention which was altogether legal and appropriate * * (R. 785.)
Sergeants Gleason and Kappes went to plaintiff’s home and took bim down to Police Headquarters Annex, on Broome Street. Before they left the plaintiff’s home his gun and shield were taken away from him and he was never thereafter allowed to be out of the sight of the police who were connected with the investigation. In fact, on the way from Broome Street to the 45th Precinct, in The Bronx, where he was later formally booked, the plaintiff indicated to the officers who were accompanying him, that he was ‘ ‘ going to run over and get some cigars ’ ’. He was told by one of them “ Oh, no, no, no, I’ll go with you ” and Sergeant Gleason went over with him to get the cigars. (R. 166-7.) Therefore, while it is true that he was formally booked on the 11th day of July, at 1:00 a.m., that does not alter the fact that he was actually arrested at his home as above indicated.
With reference to the identification by Agrámente, it is of the utmost importance to note that Agramonte testified time and time again at the trial and also in his examination before trial that he simply identified the plaintiff as one who had been in his gun shop on other occasions and with whom he had done some business and not as the one who had sold the stolen guns to him.
*248We are not unmindful of Agramonte’s testimony before the Magistrate, on July 17, 1958, when the plaintiff was discharged, at the request of the District Attorney and the police, on the complaint charging him with theft of the guns from the Property Clerk. At that time Agramonte testified that he had been mistaken in his identification. But it must be remembered that none of this testimony was binding on the plaintiff at the time of the hearing before the Magistrate. As a matter of fact, the plaintiff’s lawyer, who was present during the Magistrate’s Court proceedings, for all practical purposes, was not permitted to interrogate Agramonte, nor Inspector Henning, who also testified. It was the position of the District Attorney and the presiding Magistrate that that court was not the forum for anything else that plaintiff’s counsel had in mind. It was stated by the District Attorney that the purpose of putting Agramonte on the stand was to have the record disclose that a mistake of identity had been made by him so that a motion could be made for the dismissal of the complaint charging larceny from the Property Clerk’s office. (R. 872-3.)
At the trial of the case at bar the Justice presiding permitted defense counsel to make use of the transcript of the Magistrate’s Court in examining the witness, Agramonte, but he ruled that he was allowing it only for the purpose of weighing the credibility of Agramonte and that the statements made by him at the Magistrate’s hearing were not binding upon the plaintiff or upon the plaintiff’s cause of action. (R. 650-1.) This was obviously fair, because (Graham’s counsel was not allowed to take any part in the proceedings in the Magistrate’s Court, and he was cut off from any examination of the witness. Under the circumstances it Avas clearly a question of fact as to Avhether the testimony of Agramonte, given at the trial, Avas to be believed, taking into account any fact which Avas brought out and Avhich might affect his credibility.
In any event, the jury had to weigh the testimony of Agramonte at the trial and also his behavior at the 45th Precinct, in light of the fact that he Avas himself a suspect at the time of the lineup. Former Assistant District Attorney Farrell testified at the trial that his recollection of the events at the 45th Precinct, amongst other things, Avas ‘ ‘ that Mr. Agramonte was there being charged with a crime or about to be charged Avith a crime because of certain guns that were found in his place of business ”. (R. 703.) At the trial the court beloAV, in part, charged the jury that it Avas to ‘ ‘ consider whether Agramonte was under any coercion by virtue of possible involvement in the events at the time of his identification of the plaintiff in the lineup ”. (R. 843.)
*249The defendant’s argument, in its brief, that the identification of plaintiff by Agramonte, as a matter of law, constitutes probable cause is ill-founded. That would be so if Agramonte had been the victim of a crime perpetrated by the plaintiff. Under such circumstances the police officers would be bound to make an arrest upon the identification of the victim. However, we are not dealing with such a case. Agramonte was not a complainant against the plaintiff. He was used by the Police Department to bolster its case against the plaintiff who had been arrested long before the lineup identification.
In further judging the conduct of the police investigators it is important to remember that they knew that Graham had done business with Agramonte, using his true name, and that there were written records of that fact. There was no secret about it. It is hardly likely that Graham, whose real identity was known by Agramonte, would have sold stolen guns to him under an assumed name. They also knew that the real culprits, who had stolen the guns from the Property Clerk’s office, while identifying themselves as being from the New York City Police Department, by showing their shields to Agramonte, signed false names and false shield numbers. One gave his address as 54 Arch Drive, Peekskill, and the other as 52 Arch Drive, Peekskill.
While at the 45th Precinct, and hours before the formal booking, a handwriting expert was called by the police investigators to compare the writing of the plaintiff with that of the real culprits. Plaintiff fully co-operated with the expert, giving many specimens of his handwriting. The result was that the expert then and there advised the police investigators that he could not say that the questioned documents were in Graham’s handwriting.
Serious criticism is also justly due to the police for the manner in which they handled the search for the real culprits and their failure to delay the arrest of the plaintiff until the results of that search were in.
At ft. 425 Inspector Henning testified: “ we sent out a covering message to Peekskill to have it on record, and we sent out a message that said, was there any New York City policemen living at Arch Drive and, if so, who were they, and how long were they there and so forth. ’ ’
At E. 482-3:
“ Q. When did you send that alarm out? A. On the 11th, about the time of the booking.
“ Q. Wait a minute. You got this information, according to your evidence, on the 10th. Didn’t you send out an alarm on the 10th? A. No.
*250“ Q. You went right through with the booking and mugging and everything else of Graham, is that right? A. That’s right.
‘ ‘ Q. And you hadn’t completed your inquiries in fact of Meade and Duggan, had you ? A. Nope. ’ ’
Before an answer was received, pursuant to this alarm, and without waiting for one, the plaintiff was formally booked on July 11, at 1:05 a.m. Inspector Henning was also asked (R. 425) :
“ Q. And when did you get the answer to that? A. Got the answer back on Saturday, July 12th.
‘ ‘ Q. And, of course, Graham had been booked at 1:05 a.m., on July 11th; is that correct? A. Yes.”
Why did the police wait until the 11th to send out an alarm when a man was under arrest and he need not have been? Certainly the arrest of the plaintiff could have waited another day. Did not the jury have the right to consider this behavior on the part of the police authorities, together with all the other facts in the case, to determine whether there was probable cause for plaintiff’s arrest? What particular reason made it necessary to arrest the plaintiff without completing all phases of the investigation? He was a member of the New York City Police Department since November 1,1948, had an excellent background, was a member of the New York City Pistol Team and had never been in trouble with his superiors until this investigation started. He persistently denied any connection with the theft, both to the police and to Assistant District Attorney Farrell, who also questioned him. It is noteworthy that, at the trial, Mr. Farrell testified as follows (R. 705):
1 ‘ Q. By the way, as a result of anything that happened in that police station that night, did you as the Assistant District Attorney, order the arrest of David Graham? A. I didn’t order the arrest, no.
‘ ‘ Q. Did you make any request of the Police Department that they arrest David Graham? A. No I didn’t.”
There could have been no harm to anyone if the arrest of this plaintiff had been put off until the investigation was actually completed.
As to the charge placed against this plaintiff of receiving stolen property, a misdemeanor, it is significant to note that it was based upon an alleged theft of two guns from a Patrolman Kramer which, according to plaintiff’s Exhibit 17 in the record, a Police Department document, were allegedly “ lost or stolen ” in 1954. (Emphasis supplied.) The record clearly shows that Kramer would not make any complaint and how the authorities expected to support this charge is beyond our understanding. Accordingly, the Grand Jury, quite properly, dismissed this *251charge. Certainly it was not claimed that the plaintiff had actually stolen the guns. The only theory upon which a prosecution could have been based is one of possession of recently stolen property. Is it seriously contended that articles allegedly lost or stolen four years before this plaintiff’s arrest, and found in his possession, come within the definition of a recent possession?
Add to this the further fact that, when the plaintiff ascertained that these guns really had belonged to a Patrolman Kramer, he then gave the investigators the name of Patrolman Gfreatbach as the one who had sold the two guns to him. He also explained that his failure to mention this last name earlier was because he did not wish to cause the patrolman any unnecessary difficulties. But he would not hold back this information when he ascertained that the guns belonged to Patrolman Kramer rather than Greatbach.
For the reasons above stated, questions of fact were properly submitted to the jury as to whether the defendant acted in the absence of probable cause and with malice in the prosecution of the plaintiff. The record discloses that these issues were decided against the defendant and the jury’s determination is amply supported by the evidence and the law and, therefore, its verdict, as hereinafter modified, should be affirmed.
The amount awarded by the jury is grossly excessive in the light of the limited special damages shown at the trial and a verdict in excess of $15,000 is not warranted on this record. Accordingly, the judgment entered on July 6, 1965, in favor of plaintiff against defendant, City of New York, in the sum of $40,521.50 should be reversed, on the law and on the facts, with costs to defendant-appellant, the verdict vacated, and a new trial granted, unless plaintiff stipulates to accept $15,000 in lieu of the award by verdict, in which event the judgment should be modified to that extent and affirmed, as thus modified, with costs to defendant-appellant.