Chernow v. Feldman

251 A.D. 329, 296 N.Y.S. 149, 1937 N.Y. App. Div. LEXIS 6936

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1937
• Status: Published

Opinion

Per Curiam.

The appeal is from an order denying a motion to dismiss the complaint upon the ground that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action.

When a criminal charge is sustained to the extent that a magistrate holds a defendant for the action of the grand jury, or a grand jury indicts, both of which elements were present in this case, in an action for malicious prosecution, there is a prima facie showing of the existence of probable cause, and it is incumbent upon the plaintiff to rebut this showing by alleging facts involving the malicious failure of the defendants to inform the public authorities of the surrounding facts or circumstances, or a malicious distortion of them, or other facts showing the wrongful conduct of the defendants, to the end that, without such conduct, the charges would not have been entertained. Mere allegations that the charges were false and that the defendants acted maliciously and without probable cause are not sufficient. Nor is it sufficient to allege, merely, that the defendants conspired to do these things without alleging the facts constituting the alleged conspiracy. If Brown v. Beiley (185 App. Div. 288) has not been overruled by the subsequent decisions of appellate courts, we do not follow it. (Hopkinson v. Lehigh, Valley R. R. Co., 249 N. Y. 296; Graham v. Buffalo General Laundries Corp., 261 id. 165; Green v. General Cigar Co., Inc., 238 App. Div. 638.)

The order shorád be reversed on the law and the facts, with ten dollars costs and disbursements, and the motion to dismiss the complaint granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within ten days from the entry of the order hereon.

Hagarty, Davis, Johnston, Adel and Close, JJ., concur.

Order denying motion to dismiss the complaint reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint within ten days from the entry of the order hereon.