(dissenting). In stating my reasons for withholding my assent to the views expressed and the conclusion reached in the prevailing opinion in this case, I am prepared to concede that, whatever the rule may be in other jurisdictions, it is apparently settled that in this state an action will not lie for damages which may have resulted to the successful party in an ordinary civil action which was brought maliciously and without probable cause. Willard v. Holmes et al., 142 N. Y. 492, 37 N. E. 480; Ferguson v. Arnow, 142 *378N. Y. 580, 37 N. E. 626. But in the case first above cited, while this rule was recognized and asserted, it was said that there was “satisfactory authority for holding that where a party had been subjected to some special or added grievance, as by an interference with his person or property, in a civil action brought without probable cause, he may maintain a subsequent action to recover any legal damage which he avers and is able to show to have been occasioned to him.”
Now, it is not contended that in the former action, upon which the plaintiff herein rests his claim for damages, there was any interference with his person ór property—that is, he was not arrested, and his property was not attached; but it seems to me quite clear that, aside from the annoyance and expense attending the defense of that action, the plaintiff was subjected to a “special grievance” which was well calculated to work as serious results as would have been the case had his liberty or property been interfered with, for it was sought by that action to recover from him a large sum of money which it was alleged he had wrongfully converted to his own use, and the complaint charged him with no less an offense than the commission of grand larceny. As a direct consequence of this charge, the plaintiff was not only deprived of an important and lucrative position, but he was subjected to personal indignity, and his reputation was assailed and impaired to an extent which, it is fair to assume, can never be overcome. Moreover, the action was of such a nature that, had the plaintiff therein been successful, an execution against the person might have been issued against this plaintiff. It must be conceded, I think, that, upon the evidence contained in the record now before us, the jury would have been justified in finding that the action of which complaint is made was brought without probable cause and with the malicious design of forcing a confession from the defendant (this plaintiff), and, if so, can it with any propriety be claimed that, because the plaintiff in that action did not go to the extent of actually arresting the defendant or attaching his property, he thereby relieved himself from all liability for his malicious acts? It seems to me that, if an action for malicious prosecution in a civil action is ever to be upheld, the facts of this case should give it a standing in court.
In discussing the circumstances of one of the cases to which reference has been heretofore made (Willard v. Holmes, supra), the learned judge who wrote the opinion laid much stress upon the fact that “the complaint and the affidavit in the former action contain no charges of fraud or of a defamatory character,” but that the action was one purely for the recovery of money. This language conveys the impression to my mind that, had the affidavit and complaint assailed' the defendant’s character in the manner and to the extent that this plaintiff’s character was assailed in the action complained of, it would have been regarded as a “special grievance,” equivalent in its consequences to an interference with his person or property. While I have no disposition to encourage the bringing of actions of this nature, I am of the opinion that the disposition made of the present one at the trial term was erroneous, and that the plaintiff should have an opportunity to present his case to a jury. Pangburn v. Bull, 1 Wend. 345-