(dissenting) :
I do not agree with the majority of this court in the affirmance of the judgment in this action, because I am convinced that there was no question involved which should have been submitted to a jury. The burden of showing a want of probable cause was upon the plaintiff; he was bound to show, as one of the elements of his cause of action, not that no crime had been committed, or that he was not guilty of a crime, but that the defendants did not have reasonable cause to believe that he had been guilty of a crime. In an action of this character there are four things which must be •shown affirmatively: The institution of the proceeding ; the want of probable cause; malice, and the termination of the prosecution in *424favor of the plaintiff ; and the burden of proof is upon the plaintiff to show each of these: facts. (Shafer v. Loucks, 58 Barb. 426 Hamilton v. Davey, 28 App. Div. 457.) It is, therefore, necessary that the plaintiff should prove that the ' defendants had no reasonable and probable caupe to make the complaint against him, and that they did it maliciously and with intent to injure the plaintiff. (Osborn v. Stephens, 74 Hun, 91.) Probable cause has been defined as “ a. reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense.” (See Shafer v. Loucks, supra, 431, and authorities there cited; Kutner v. Fargo, 34 App. Div. 317, 320, and authorities there cited.) Where the* facts which were within the knowledge of the defendants at the■timé of instituting the proceeding are undisputed, the question presented is one of law, and to be determined by the court. (Kutner v. Fargo, supra, 320; Hamilton v. Davey, supra, 459, and authorities there cited ; Willard v. Holmes, Booth & Haydens, 142 N. Y. 492, 497.)
There is no dispute that the defendants were engaged in a large* wholesale business, with over 18,000 customers, and that they employed one Borchardt as a salesman, with authority to collect, bills from his customers ; it is equally undisputed that Borchardt. became a defaulter to the extent of nearly $25,000. There is no-dispute that the plaintiff was employed by the defendants as a credit man, and that he was thus employed during all the period covered’ by these defalcations on the tpart of Borchardt. It is conceded that the custom of the defendants was to send out monthly statements of account to all their customers, with a notice that this was not a-request for the money, but merely for the purpose of having- any errors in the account called' to* the attention of the defendants, the obvious and admitted purpose being to have a check upon the salesman-The plaintiff admits that the bookkeeper of the defendants'made-out these statements and placed them all upon his desk; that he** examined them and turned them over to a clerk, whose duty it waste address these statements, and that they were then passed on to thé mailing clerk. Ho one questions that there were a considerable-number of changes made in the addressing and mailing clerks during the period of defalcations, so that the plaintiff was the only man,, *425between the bookkeeper, who concededly acted and delivered the the statements to the plaintiff, and the various customers, who was-in a position to suppress the statements to the customers of Borchardt, and it is not disputed that the latter was enabled to carry on his defalcations for a period of three years by reason of the fact that these monthly statements, made out and delivered to the plaintiff by the bookkeeper, failed to reach their destination. Borchardt’s defalcation being known, and the facts and circumstances being such that there was a great chance of the plaintiff being the accessory, there was here a ground of reasonable suspicion, warranting at least a careful investigation on the part of the defendants. Giving to the plaintiff the benefit of the presumption of honesty which belongs to an old and trusted employee, it was more probable that he was the one who could pick out the particular statements which were intended for - the customers of Borchardt and suppress them than that this could be done by the changing employees in a subordinate position, who could have no general knowledge of the business, and who could not handle the statements without running much larger risks than the plaintiff. In addition to these conceded or undisputed facts, the defendants knew that when the defalcation of Borchardt was under investigation the plaintiff declined to be the one who should call the attention of the former to the matter, and advised against the investigation, and that the work should be proceeded with with great care. They also knew that the plaintiff, who had been in their employ for twenty-five years, and who had worked himself up to a position commanding $4,500 per year, offered his resignation, without giving any reason therefor, and that he subsequently gave his address in a business transaction at the business place of Borchardt, whom he knew to be guilty of a large defalcation. They knew, likewise, that Borchardt had paid over considerable sums of money to the plaintiff during the few months which preceded the discovery of the defalcation of Borchardt, and that the plaintiff had, as a condition of making an affidavit in a matter in which Borchardt was ■ involved, demanded and received a certain slip of paper, in which the plaintiff had written to Borchardt in substance that “ I am sorry I can do nothing for you for a couple of days. Tour note came to me too late. If. I had known of it sooner I would have held back your slips for a day *426or two.” In addition to all of these matters, and the fact that the plaintiff was* known to associate closely with Borchardt, after his defalcations and after he had left the employ of the defendants, the defendants and their counsel had received from Borchardt a confession, in which the latter declared that the plaintiff was his accomplice in the matter, and that the plaintiff had received $6,000 ■or $8,000 of the proceeds of the defalcation. In the light of these facts, none of which are disputed, the defendants, on the advice of their counsel, the latter of whom had conducted a personal investigation at their request, called the attention of the district attorney ■of the county to the case, and the latter directed his assistant to make a thorough investigation, and if the facts warranted it, to lay the matter before the grand jury. The assistant made the investigation, calling some twenty or thirty witnesses into the office, and reported to his superior that the evidence undoubtedly justified action, and the case was then laid before the grand jury, which found an indictment, upon which the plaintiff was arrested, being subsequently released, owing to defects in the indictments which were found.
What is there here for the jury to pass upon ? Borchardt had committed a crime which he could not have carried out for any length of time without an accomplice or accomplices; the plaintiff was the one man who could have been this accomplice during all of the three years covered by the commission of the crime, and he voluntarily relinquished his position, paying a salary which had long been acceptable to him, and became the close associate of the defaulter, after the crime was publicly known, and the defaulter, on being confronted, admitted that the plaintiff was his accomplice. Was it the duty of the defendants, knowing all of the facts which we have detailed, and others of less importance, but all tending in the same direction, to go to thé plaintiff and tell him of the suspicions entertained, and give Mm an opportunity to explain? Was that what .reasonably prudent men do when they have been robbed by their employees ? Clearly the defendants were not bound to inform him of their suspicions and give him an opportunity to escape. (Kutner v. Fargo, supra, 322.) In the language of the case last above cited (pp. 320, 321): “ Without reflecting upon the plaintiff in the slightest degree, and without questioning the justice of the *427verdict of acquittal, we cannot doubt that the appearances were greatly against him, and that the circumstances were such as to ■furnish any discreet and prudent man with reasonable grounds for the accusation.”
The defendants were not hasty; they did not cause his preliminary arrest and detention, but only when, after investigation by themselves and by their attorney, they became convinced that they had discovered the accomplice of Borchardt, they called the matter to the attention of the district attorney, and the latter, after investigation, brought the case before the grand jury, and that body, in the discharge of its duty, found that there was probable cause to believe that a crime had been committed and that the plaintiff was guilty of that crime, for this is the necessary foundation for an indictment. “ The right of individual citizens to be secure from an -open and public accusation of crime, and from the trouble, expense and anxiety of a public trial,” say the court in Jones v. Robbins (8 Gray, 329, 344), “ before a probable cause is established by the presentment and indictment of a grand jury, in case of high offenses, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as •one of the ancient immunities and privileges of' English liberty,” and while the action of the grand jury in finding that there- was probable cause may not be conclusive in all cases, it would seem that its determination upon the facts which were presented in this •case, taken in connection with the conceded facts, afforded a sufficient foundation to justify the court in disposing of the question of probable cause as one of law. Of course, if it. was shown that the defendants presented a garbled or unfair statement of the facts known to them to the grand jury it would afford no protection to the defendants that the grand jury had found an indictment, but where, as in the present case, the facts known to the defendants were sufficient to warrant them in believing that the plaintiff was the accomplice of Borchardt in his embezzlement, and these facts, after an independent investigation by the district attorney or his assistants, were placed before the grand jury, and that body found that there was probable cause to believe that a crime had been committed, and that the plaintiff was a party to that crime, it illy comports with public policy that the defendants should be called upon *428to pay large damages simply because of a failure on the part of the prosecuting attorney to make a case against the plaintiff. The action of the grand jury upon the conceded facts was a judicial determination that there was probable cause, and the plaintiff having failed to show that there was any misrepresentation of the facts on the part of the defendants, upon which the grand jury acted, there was a failure to prove that want of probable cause which the law demands, and it was error to submit the question to the jury. We must assume that the grand jury did its duty; that it received and acted only upon competent- evidence, and its conclusion in the absence of evidence going to show that the defendants sought to-mislead or deceive that body for the purpose of securing an indictment, should afford protection to the defendants.
In Monaghan v. Cox (155 Mass. 487), in an action for malicious-prosecution, it was held that evidence that the defendant, in commencing the prosecution, acted upon the advice of the magistrate-who received the complaint, was admissible upon the question of probable cause, overruling former cases, and the court say : “ Th& logic of the defense is, that the proceedings - alleged to have been malicious were in fact.instituted in good faith and upon probable^ cause, and that it -is upon the whole better that he who thus sets-them in motion with the purpose of vindicating the law should be? protected in the act, although an alleged offender may sometimes-suffer unjustly, than that wrong and crime should go unjranished because of the danger incurred in making complaints. To establish, the defense, it is required of the party himself, if he claims protection because he acted upon the advice of others, that he shall act in good faith believing that he has good cause for his action, and not' seeking to procure an opinion in order to shelter himself; that he shall make a full and honest disclosure of all the material facts» within his knowledge or belief; that he shall be himself doubtful of his legal rights, and shall have reason to presume that the person to whom he applies, or whose advice he follows, is- competent to-give safe and prudent counsel, and that he shall honestly pursue the-directions of his adviser ; the adviser must. he learned in the law,, and of such training and experience that he may safely be presumed to,be competent to give wise-and prudent counsel in important matters and must act under a sense of responsibility. By our own. *429decisions above referred to, if upon the evidence it is clear that the complainant so acted, and that his adviser was a counsellor at law, the defense is established, and the court will direct a verdict for the defendant.” (See, also, Black v. Buckingham, 174 Mass. 102,107, and authorities there cited.) The defendants come squarely within the rule here laid down; they made an investigation and were in doubt; they called in their attorney, who conducted an investigation in their behalf, and who then advised them to present the matter to the district attorney; they followed this advice, and the district attorney, through his assistants, made an investigation, and finally presented the matter to the grand jury, and that body found an indictment upon the evidence produced by the defendants and their witnesses, none of which is shown to have been false or misleading, or lacking in any of the elements of good faith. If the defendants, under this state of facts, are not protected by the law, what safety can there be for any one to set in motion the machinery of the law where a crime has been committed ? The verdict of the jury in the case at. bar can rest upon no other foundation than the fact that there was a failure in the prosecution, for certainly no reasonable man can hold that the facts which were known to the defendants, and which they disclosed to counsel and to the district attorney, were not such as to warrant an .ordinarily prudent man in believing that the plaintiff was the accomplice of Borchardt.
I think the judgment should be reversed and a new trial granted.
Judgment and order affirmed, with costs.