Callahan v. Coney Island & Brooklyn Railroad

173 A.D. 909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1916
• Status: Published

Opinion

—Judgment and order reversed and new trial granted, costs to abide the event. The plaintiff sued upon two causes of action, namely, false arrest and malicious prosecution. He recovered a general verdict. Although the evidence was sufficient to uphold a verdict upon the first cause inasmuch as it justified the conclusion that defendant through its officer or officers personally participated in the arrest by direct act or personal procurement, and, therefore, the defendant could be held liable unless it established justification (Schultz v. Greenwood Cemetery, 190 N. Y. 278; Farnam v. Feeley, 66 id. 453), there must be a new trial inasmuch as, upon the second cause of action, the plaintiff, with the burden to prove want of probable cause and malice (Schultz v. Greenwood Cemetery, supra; Rawson v. Leggett, 184 N. Y. 504), failed to establish that cause of action by a fair preponderance of credible proof. (Schultz v. Greenwood Cemetery, supra; Hewell Mal. Pros. 290.) It was essential that he should establish both want of probable cause and malice. (Conner v. Wetmore, 110 App. Div. 440.) Jenks, P. J., Stapleton, Mills, Rich and Putnam, JJ., concurred.