Hatch, J.:
The plaintiff, George W. Bankell, was arrested upon the 11th day of April, 1901, upon a warrant sworn out by the defendant, charging him with the larceny of four dollars and sixty-eight cents. Upon his examination before the magistrate he was held for trial and gave bail in the sum of five hundred dollars. Upon the 7th day of June, 1901, he was tried in the Court of Special Sessions and acquitted, and thereupon he brought this action for malicious prosecution and false imprisonment. The plaintiff was an employee of the Morris European and American Express Company, with which company he remained from August, 1898, to January 10, 1901. His duties were those of a solicitor of export business and collector of unpaid freight bills. In August, 1899, the defendant Edward Weinacht, who was the general manager of the express company, discovered that Bankell was short in his accounts and that he had collected several small amounts which he had failed to turn over to the company. When questioned about it Bankell admitted that he had not turned over certain of such moneys. Thereupon an arrangement was made between the parties, under which the amount of the deficit was to be deducted from plaintiff’s salary from time to time in small amounts. This arrangement was carried out and the money paid. Upon the trial the defendant testified that the amount of the shortage thus adjusted was from forty to fifty dollars, while the plaintiff testified that it was only about twenty dollars. The exact amount is not now material. The defendant also testified that when he made the arrangement for the payment of the deficit he believed that the plaintiff would serve the company faithfully and pay over all moneys collected by him, and for this reason he was retained in his employment and subsequently his wages were raised. Plaintiff continued with the company until about the 10th day of January, 1901, when he engaged in business with the Merchants’ European Express Company, which he was largely instrumental in organizing, and the latter company became a sharp rival of the defendant’s company in the express business. After the plaintiff had left the employ of defendant’s company and in February, March or April, the defendant discovered that bills which were apparent obligations of persons and corporations doing business with the company had been paid; thereupon he [319]*319made careful investigation of the matter and discovered that various persons held receipted bills for the sums appearing to be due from them upon the books of the company, amounting to forty or fifty dollars. This money, so far as the defendant was able to discover from the books and employees of the company, whom he consulted, had not been paid over. Among the receipted bills was that of John Boyle, amounting to four dollars and sixty-eight cents, which was unaccounted for, and the receipt for which was signed by the plaintiff. After making the investigation, the defendant laid the whole matter before the attorney of the company for advice concerning the matter and the liability of the plaintiff in relation thereto. The attorney made a thorough investigation of the whole subject and, after such investigation, he advised that the plaintiff was guilty of larceny. After receiving this advice the defendant caused the plaintiff to be arrested upon such charge. The plaintiff admitted the misappropriation of the moneys, the amount of which was deducted from his salary. He disputed the amount, but he did not dispute the fact of the misappropriation. He also admitted that the receipt held by Boyle was in his handwriting, and that he had received the money; he claimed that after he received it, as there was no one present in the office to whom he could give the money, he made a memorandum' of the amount and from whom it was received and placed it upon the desk of the bookkeeper, and that he never again saw or heard anything concerning it until he was arrested upon the charge of larceny.
The law is well settled that the burden is devolved upon the plaintiff to prove that the prosecution was instituted through malice and without probable cause.
The latter question becomes one of law for the determination of the court. Where the facts are not in dispute it is error to submit such question to the jury; but where tlie evidence upon the subject of probable cause is controverted and conflicting, or it involves the credibility of witnesses, then it becomes a mixed question of law and fact, and is required to be submitted to the jury under proper-instructions as to the law. , (Fagnan v. Knox, 66 N. Y. 525.) In that case it was said: u The question of what constitutes probable cause does not depend upon whether the offense has been committed in fact, nor whether the accused is guilty or innocent, but upon the [320]*320prosecutor’s belief, based upon reasonable grounds. (
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Hatch, J.:
The plaintiff, George W. Bankell, was arrested upon the 11th day of April, 1901, upon a warrant sworn out by the defendant, charging him with the larceny of four dollars and sixty-eight cents. Upon his examination before the magistrate he was held for trial and gave bail in the sum of five hundred dollars. Upon the 7th day of June, 1901, he was tried in the Court of Special Sessions and acquitted, and thereupon he brought this action for malicious prosecution and false imprisonment. The plaintiff was an employee of the Morris European and American Express Company, with which company he remained from August, 1898, to January 10, 1901. His duties were those of a solicitor of export business and collector of unpaid freight bills. In August, 1899, the defendant Edward Weinacht, who was the general manager of the express company, discovered that Bankell was short in his accounts and that he had collected several small amounts which he had failed to turn over to the company. When questioned about it Bankell admitted that he had not turned over certain of such moneys. Thereupon an arrangement was made between the parties, under which the amount of the deficit was to be deducted from plaintiff’s salary from time to time in small amounts. This arrangement was carried out and the money paid. Upon the trial the defendant testified that the amount of the shortage thus adjusted was from forty to fifty dollars, while the plaintiff testified that it was only about twenty dollars. The exact amount is not now material. The defendant also testified that when he made the arrangement for the payment of the deficit he believed that the plaintiff would serve the company faithfully and pay over all moneys collected by him, and for this reason he was retained in his employment and subsequently his wages were raised. Plaintiff continued with the company until about the 10th day of January, 1901, when he engaged in business with the Merchants’ European Express Company, which he was largely instrumental in organizing, and the latter company became a sharp rival of the defendant’s company in the express business. After the plaintiff had left the employ of defendant’s company and in February, March or April, the defendant discovered that bills which were apparent obligations of persons and corporations doing business with the company had been paid; thereupon he [319]*319made careful investigation of the matter and discovered that various persons held receipted bills for the sums appearing to be due from them upon the books of the company, amounting to forty or fifty dollars. This money, so far as the defendant was able to discover from the books and employees of the company, whom he consulted, had not been paid over. Among the receipted bills was that of John Boyle, amounting to four dollars and sixty-eight cents, which was unaccounted for, and the receipt for which was signed by the plaintiff. After making the investigation, the defendant laid the whole matter before the attorney of the company for advice concerning the matter and the liability of the plaintiff in relation thereto. The attorney made a thorough investigation of the whole subject and, after such investigation, he advised that the plaintiff was guilty of larceny. After receiving this advice the defendant caused the plaintiff to be arrested upon such charge. The plaintiff admitted the misappropriation of the moneys, the amount of which was deducted from his salary. He disputed the amount, but he did not dispute the fact of the misappropriation. He also admitted that the receipt held by Boyle was in his handwriting, and that he had received the money; he claimed that after he received it, as there was no one present in the office to whom he could give the money, he made a memorandum' of the amount and from whom it was received and placed it upon the desk of the bookkeeper, and that he never again saw or heard anything concerning it until he was arrested upon the charge of larceny.
The law is well settled that the burden is devolved upon the plaintiff to prove that the prosecution was instituted through malice and without probable cause.
The latter question becomes one of law for the determination of the court. Where the facts are not in dispute it is error to submit such question to the jury; but where tlie evidence upon the subject of probable cause is controverted and conflicting, or it involves the credibility of witnesses, then it becomes a mixed question of law and fact, and is required to be submitted to the jury under proper-instructions as to the law. , (Fagnan v. Knox, 66 N. Y. 525.) In that case it was said: u The question of what constitutes probable cause does not depend upon whether the offense has been committed in fact, nor whether the accused is guilty or innocent, but upon the [320]*320prosecutor’s belief, based upon reasonable grounds. (
It is said, however, that inquiry should have been made of Miss Sachs, a stenographer and assistant cashier employed by the company. She was sworn as a witness upon the trial, and testified that all cash collected was to be turned in to the defendant or to her, and when turned in to her she would initial the bills to show that she received the money. Assuming that the defendant in the exercise of extreme caution ought to have seen this witness, who had then left the employ of the company, he would' have been chargeable with no more knowledge than she could have imparted had he consulted her, and her knowledge consisted in the fact that the plaintiff had not turned over the money which he was charged with misappropriating to her, and her initials were not upon the receipted bill, nor were the bills turned in to her, nor did the defendant pretend that he delivered either bill or money to this witness. Information which she could have imparted prior to the arrest simply increased the weight of the testimony in showing the existence of probable cause.
It is further claimed that the defendant made a false affidavit upon which the warrant issued, and that this fact indicated a lack of probable cause. The falsity claimed consists in the statement that the plaintiff failed, neglected and refused to pay over the money to the express company. It was conceded that the defendant made no demand upon the plaintiff to pay the money, and, therefore, it is said that the statement is false that he refused to pay over the money. We are of opinion that the affidavit is not sus[322]*322ceptible of this construction. It was the plaintiff’s duty to turn over the money after being received, and if he failed it operated in law as a refusal upon his part to perform the duty which rested upon him, and the affidavit is to be construed as referring to the omission to pay over rather than that a demand was made, followed by an affirmative refusal of compliance.
The plaintiff also claims that want of probable cause can be gathered for the reason that no demand was made upon the defendant for a return of the money and that he was not arrested until eight months after the alleged larceny. It was not essential that a demand should be made in order to justify a reasonable ground of belief of the plaintiff’s guilt, if the facts existing justified it as they clearly did. While the delay between the misappropriation and the issue of the warrant was eight months, yet the defendant’s investigation into the plaintiff’s acts did not close until some time in February, March or April, and plaintiff was arrested on the eleventh day of April. Mo inference justifying a lack of probable cause can, therefore, arise from this fact.
Claim is also made that probable cause can be inferred from the fact that the plaintiff started in a rival business; that seven days before the arrest defendant began a civil suit against the plaintiff, charging him with unfair competition. These facts did not bear upon the question of probable cause, but bore upon the question of malice in instituting the prosecution. It is well settled that lack of probable cause may not be inferred from proof of malice. (Besson v. Southard, 10 N. Y. 236.) Upon the whole case we are of opinion that the plaintiff failed in bearing the burden of showing that there existed a lack of probable cause. On the contrary, we think that upon the practically undisputed facts the existence of probable cause in instituting the prosecution was established to exist.
It, therefore, follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; O’Brien, J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.
Bacon v. Towne.