In the late Spring of 1958, a substantial cash shortage was discovered in the Bronx office of the Police Department Property Clerk. A check revealed that sev*252eral guns were also missing. An investigation was ordered and an Inspector with a staff of 21 detectives was assigned to the job. The initial steps, simultaneously taken, were to make an audit of the office and to seek the thief who stole the money known to have been taken.
A patrolman named Jackson was quickly discovered to be the one who stole the money. He denied any participation in the theft of the guns and attributed that to another officer whose name was unknown to him but whom he described from having-seen frequently in the Property Clerk’s office. An officer named Sullivan, who was in charge of the Property Clerk’s office, was interviewed, and he reported that the man described was undoubtedly Graham, the plaintiff in this action.
The same day,’ July 8, 1958, Graham was brought in for questioning. It immediately developed that Graham was a firearms enthusiast, a collector and an amateur gunsmith. He frequently conducted his activities in association with a building superintendent named Clark, who owned the required tools and was a skilled mechanic. They referred to themselves as Graham and Clark. At the time, Graham had several revolvers, pistols and rifles, and these were produced. He admitted that he frequented the Property Clerk’s office for the purpose of checking- the guns held there in order to make possible purchases when a gun was returned to the owner. He also admitted being- on friendly terms with Sullivan, even to the extent that Sullivan allowed him to appropriate parts from guns in the office when Graham would need a part in his gunsmi thing operation.
Undoubtedly the questioning officers believed Graham to be the thief and the questioning was severe. There is a sharp divergence in the accounts given by Graham and the officers called by the defendant. Graham’s account was highly inflammatory and dramatically depicted an interrogation conducted in the grossest imaginable terms. While it was not characterized by violence or other physical pressure, as narrated by him it was so brutally unfair that it was impossible to listen to the account without a high degree of indignation. However, Graham’s account, if dispassionately examined (a very difficult process) gives internal evidence of being exaggerated to a substantial degree. There can be little doubt that the narration inflamed the jury and resulted in the unwarranted size of the verdict.
On the same day, July 8, the audit of the Property Clerk’s office was completed and the identifying numbers of the missing weapons became known. A check of the guns produced by *253Graham showed that none of them corresponded with the stolen firearms. On the next day Graham was questioned before a stenographer as to the accounts he had already given as to his acquisition of the guns. His conduct showed the breach of a number of departmental regulations and, additionally, while none of the guns was the subject of the current investigation, two of them had some time before been reported to the department as being stolen. Graham admittedly lied in his answers as to how he had acquired these weapons. The purpose of this interrogation was merely to make a record of what he had already said.
On this day, July 9, a team of detectives interviewed all the licensed gun dealers in the city, but no trace of the missing-weapons was found, in their records. Up to this point no criminal charge had been lodged against Graham. On July 10 investigation of gun dealers was extended to the suburbs and in the books of the 15th dealer interviewed, Agramonte, Inc., in Yonkers, records of several of the missing- guns were found. Two of the guns were still on the premises, and Edward Agramonte, the principal officer of the corporation, recalled the purchase and it appeared in some detail in his records. The relevant information was that the guns had been sold by two police officers who gave their names as ‘ ‘ Meade and Duggan ’ ’ and also their shield numbers and addresses. The last was given as 54 and 52 Arch Drive, Peeksldll, New York. The detective making the discovery immediately telephoned Inspector Henning, who was conducting the investigation. A check of the records revealed that there were no police officers with those names and the badge numbers were- false. A call to Peekskill unearthed that there was no street known as Arch Drive in that town. Upon ascertaining these facts, Inspector Henning told the detective to invite Agramonte to come to the station house. Agramonte accepted and, in a conversation with Henning, gave complete details of his recollection of the transaction. Meanwhile, Graham had -been called to the station house. A lineup of eight police officers in civilian clothes, including Graham, was arranged. Agramonte picked Graham from the lineup. The testimony on this point will be discussed below.
Graham was immediately put under arrest and taken before a Magistrate. His counsel sought an adjournment and no proceedings on the charge were held. Graham was incarcerated. The next morning bail was supplied. In the course of the day the police received a telephone call from the Police Department of the Town of Shrub Oak. It seems that the case had aroused *254the interest of various police departments in Westchester County and the Shrub Oak department reported that there was an Arch Drive in that town and that two New York City police officers resided on the street. Their names were ascertained. One was named Neid, which Agramonte had recorded as “Meade”. He confessed to the theft of the guns. The police immediately informed the District Attorney and the attorney for Graham, who was brought before a Magistrate, and the District Attorney moved that the charge against Graham for larceny of the guns be dismissed. On the application Agramonte testified that Neid was the officer who sold him the guns and that when he identified Graham he was honestly mistaken. At the time he had believed Graham to be the seller, but when he confronted Neid, his error became apparent. The charge was dismissed.
It must be obvious that the crux of the question of whether the police acted maliciously and without probable cause depends on whether Agramonte identified Graham as the seller. There were many factors which made Graham a prime suspect — his frequenting the Property Clerk’s office when he had no police business there during the sensitive period; his proclivities in respect to guns, plus his disregard for police regulations; and his established inclination to avoid the truth when it would interfere with this activity. Yet, these factors did not induce prosecution. It was only after the confrontation with Agramonte that prosecution followed. If Agramonte identified Graham as the seller, not only was there probable cause but it would have been an inexcusable dereliction of duty not to have prosecuted.
However, Agramonte’s testimony at the trial differed materially from that he had given before the Magistrate on the occasion of Graham’s discharge. At the trial he swore that he did not identify Graham as “Meade”, the man who had sold him the guns, but as a person he had on prior occasions seen at his place of business. If that be true, no cause in addition to the suspicious circumstances noted above and which had not been felt to warrant prosecution, was shown.
We appreciate that which of Agramonte’s stories is to be credited is the province of the jury as the trier of the facts. But where the evidence preponderates in favor of one version as against the other, it is the positive duty of the court to set aside a contrary verdict. And to allow an apparent injustice to result with the complacent reflection that it is a jury question, no matter how strongly the court feels the verdict should have *255been otherwise, is to shirk that duty. It is in that light that Agramonte’s two versions are examined.
It must be remembered that Agramonte was a defendant in the action. (At the close of the testimony the complaint against him was dismissed, but at the time he testified the suit against him was alive.) His first version of the identification was given ante Utem motam, his second when he was seeking to escape liability. On cross-examination by the city he failed in any way to explain the discrepancy, maintaining an obvious impossibility, that both versions were correct. But when cross-examined by plaintiff in an effort to show that he could not have made an honest mistake, he stoutly maintained that he did. A mistake could only result if he had identified Graham as “ Meade ”, and there would have been no mistake if he had merely identified Graham-as someone he had seen before.
Moreover, it is extremely doubtful whether Agramonte could have recognized Graham as a person he did business with before. While there are entries in Agramonte’s books of earlier transactions, these are with Graham and Clark, and it is not clear which of the two, Graham or Clark, had them. Further, Agramonte had clerks and he did not deal with all his customers personally. And this is perfectly clear — Graham did not recognize Agramonte at the lineup and had no idea who he was until he was later told. While it is not conclusive, it is much more probable that had the two. men met, Graham would have been the one to remember the meeting and to recognize the other; and the fact that he did not casts doubt on the fact that they ever did meet personally. As such, it is an additional reason for doubting Agramonte’s substituted version of ■ the identification incident.
For these reasons we believe the verdict to have been against the weight of the credible evidence. There is a further consideration that requires mention. If this verdict is to stand and to receive indorsement as a proper example of the legal process, there is no escaping the conclusion that Inspector Henning and Detectives Payne and O’Brien are guilty of the most serious misconduct that a police officer can commit in his official capacity.* This verdict is based on the fact that it is established by acceptable standards that these men deliberately misrepresented information obtained by them to justify an arrest and initiate a prosecution. If they did, their retention on the force *256is intolerable. It would be cowardly and inconsistent for a Judge who so found to leave the matter without making the strongest representations to the Police Commissioner to exercise his powers to remedy the situation.
The verdict should be set aside and a new trial ordered.
Rabin and McNally, JJ., concur with Capozzoli, J.; McNally, J., in memorandum in which Rabin, J., concurs; S tetter, J., dissents and votes to reverse and order a new trial in opinion in which Eager, J. P., concurs.
Judgment, so far as appealed from, reversed, on the law and on the facts, with $50 costs and disbursements to the appellant, the verdict vacated, and a new trial granted, unless plaintiff, within 20 days after service upon him of a copy of the order entered herein, with notice of entry, stipulates to accept $15,000 in lieu of the award by verdict, in which event the judgment is modified to that extent, and, as so modified, affirmed, with $50 costs and disbursements to the appellant.
These are the officers that are singled out by Graham’s testimony. The others engaged in the investigation are either nameless or exonerated by Graham himself. Furthermore, there were two detectives named O’Brien, and the one exhibiting actual malice is not identified.