Martin, J.:
The plaintiff asserts that on or about November 12, 1920, the defendant maliciously and without reasonable or probable cause, charged him before one of the city magistrates in the city of New York with the crime of larceny, in having stolen certain moneys from the defendant. At that time he was in the employ of the defendant as a driver. His duty was to deliver butter and eggs to defendant’s customers and to collect therefor. On February 9, 1920, he commenced work, but was discharged during the month of May, 1920. When he entered the employment of the defendant, he was required to deposit the sum of $100 as security and to enter into an agreement that this deposit was not to be repaid until after the defendant had been given an opportunity to investigate his accounts.
Shortly after the plaintiff had been discharged, an investigation was made by defendant’s inspectors, which disclosed shortages in plaintiff’s account amounting to about $53. Pending further investigation, the defendant withheld the security. Plaintiff thereupon sued to recover the $100 so deposited. The investigation disclosed an alleged transaction with a Mr. Sternlieb, who did business at No. 686 Third avenue under the name of the Modern Dairy Lunch, for which alleged transaction the plaintiff was arrested; out of that arrest this action arose.
[128]*128The plaintiff made an entry in his book purporting to show that he had delivered to Sternlieb on March 12, 1920, ten prints of butter at sixty-seven cents a print, amounting to six dollars and seventy cents. Sternlieb testified that this butter was never delivered to him or to the Modern Dairy Lunch.
The defendant in August, 1920, learned that the entry was false. On October 28, 1920, on advice of counsel, he went to a Magistrate’s Court and made a complaint. ■ Mr. Sternlieb made an affidavit at that time setting forth the facts, and on the hearing his testimony was taken before the city magistrate. The plaintiff was held for the Court of Special Sessions, and bail was fixed at $200. Pending the procurement of bail, the plaintiff was detained for about two hours in the Magistrate’s Court.
The plaintiff at the time of his arrest had brought an action against the defendant to recover the sum of $100, the amount deposited as security. Thereafter, on November 12, 1920, the lawyers for plaintiff and defendant met and effected a settlement of all the controversies then existing between them, and a general release was executed by the plaintiff to the defendant, releasing him from all claims made by the plaintiff. Defendant paid to plaintiff the amount due and $25 in addition thereto, and performed all conditions of the release on his part to be performed.
Thereafter and on or about the 15th day of February, 1921, the trial of the plaintiff came on before the Court of Special Sessions. The defendant there proved the shortage in plaintiff’s account, and that plaintiff never delivered the ten prints of butter to the Modern Dairy Lunch.
The court decided that the crime committed by the plaintiff was not the crime of petit larceny, but the crime of forgery, and on that sole ground the plaintiff appears to have escaped conviction, not because he was innocent of any crime but because somebody had failed to properly charge him with the crime he had committed. With proof of these facts before the jury, we must look elsewhere for the reason for this verdict. We believe that may be found in the charge of the court, for the court said: “ There may be some business men who think they can start the machinery of the criminal law and then stop it when they choose, but that is not so. If a merchant desires to avail himself of the machinery of the criminal courts to aid him in his business, and prevent employees from pilfering, he has a right to do so, but' he must take the consequences. If he chooses to use the criminal courts as a collection agency, he cannot stop the process of the criminal courts after he has collected, but the mere fact that he shows no disposition to go on and pursue the matter does not show malice, nor does it [129]*129as I view it, throw any light on the question of probable cause. It has simply educated this defendant in this particular instance to the fact that he is liable to become a defendant in an action for malicious prosecution if he uses the machinery of the criminal law as a collection agency for his business. That is what he has already learned and experienced, and I do not see that that has much to do with us, except that it is interesting.”
This charge was not only erroneous but appears to be an attempt to condemn the defendant for prosecuting a man who has committed a crime. The fact that he escaped conviction and punishment in the Court of Special Sessions was due to an error on the part of somebody in charging him with larceny instead of forgery. His acquittal in that court did not entitle him to recover $3,000 damages against the defendant in a civil action, or even $1,500 to which he consented to reduce the verdict.
There was no evidence in the case to warrant the assertion that the defendant in this action brought any proceedings to collect money. The only proceeding brought for the collection of money was that instituted by the plaintiff to recover the $100 which he had deposited as security.
Plaintiff owed money to defendant. Defendant owed plaintiff nothing. The court’s remarks that defendant was using the criminal courts as a collection agency were not based on any evidence in the case, had no application whatever to the issues and could have no other effect than to prejudice the jury against the defendant.
Again the court charged the jury: “ Mind you, you have nothing to do with teaching the defendant a lesson for starting the criminal machinery in motion, and then trying to stop it; he probably will not do it again. He has found it costs money to hire lawyers and defend himself when he does try to use the machinery of the criminal law as a collection agency; but here we get down to the question which is the issue in the case.”
It would seem unnecessary to devote much time to demonstrating the fact that these unwarranted assertions would leave very little hope for a defendant in a case of malicious prosecution, even, as here, where the prosecution was meritorious and proper, a prosecution for which defendant should not have been censured, and for which on the evidence submitted he was not liable under well-settled principles of law.
Contrast the language of this charge with that used by other courts, and especially that used by this court in Macauley v. Starr, Inc. (194 App. Div. 643, 654), where Mr. Justice Smith said: “ In Newell on Malicious Prosecution (at p. 21) the law is thus [130]*130stated: ‘ Actions for malicious prosecution are regarded by law with jealousy.
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Martin, J.:
The plaintiff asserts that on or about November 12, 1920, the defendant maliciously and without reasonable or probable cause, charged him before one of the city magistrates in the city of New York with the crime of larceny, in having stolen certain moneys from the defendant. At that time he was in the employ of the defendant as a driver. His duty was to deliver butter and eggs to defendant’s customers and to collect therefor. On February 9, 1920, he commenced work, but was discharged during the month of May, 1920. When he entered the employment of the defendant, he was required to deposit the sum of $100 as security and to enter into an agreement that this deposit was not to be repaid until after the defendant had been given an opportunity to investigate his accounts.
Shortly after the plaintiff had been discharged, an investigation was made by defendant’s inspectors, which disclosed shortages in plaintiff’s account amounting to about $53. Pending further investigation, the defendant withheld the security. Plaintiff thereupon sued to recover the $100 so deposited. The investigation disclosed an alleged transaction with a Mr. Sternlieb, who did business at No. 686 Third avenue under the name of the Modern Dairy Lunch, for which alleged transaction the plaintiff was arrested; out of that arrest this action arose.
[128]*128The plaintiff made an entry in his book purporting to show that he had delivered to Sternlieb on March 12, 1920, ten prints of butter at sixty-seven cents a print, amounting to six dollars and seventy cents. Sternlieb testified that this butter was never delivered to him or to the Modern Dairy Lunch.
The defendant in August, 1920, learned that the entry was false. On October 28, 1920, on advice of counsel, he went to a Magistrate’s Court and made a complaint. ■ Mr. Sternlieb made an affidavit at that time setting forth the facts, and on the hearing his testimony was taken before the city magistrate. The plaintiff was held for the Court of Special Sessions, and bail was fixed at $200. Pending the procurement of bail, the plaintiff was detained for about two hours in the Magistrate’s Court.
The plaintiff at the time of his arrest had brought an action against the defendant to recover the sum of $100, the amount deposited as security. Thereafter, on November 12, 1920, the lawyers for plaintiff and defendant met and effected a settlement of all the controversies then existing between them, and a general release was executed by the plaintiff to the defendant, releasing him from all claims made by the plaintiff. Defendant paid to plaintiff the amount due and $25 in addition thereto, and performed all conditions of the release on his part to be performed.
Thereafter and on or about the 15th day of February, 1921, the trial of the plaintiff came on before the Court of Special Sessions. The defendant there proved the shortage in plaintiff’s account, and that plaintiff never delivered the ten prints of butter to the Modern Dairy Lunch.
The court decided that the crime committed by the plaintiff was not the crime of petit larceny, but the crime of forgery, and on that sole ground the plaintiff appears to have escaped conviction, not because he was innocent of any crime but because somebody had failed to properly charge him with the crime he had committed. With proof of these facts before the jury, we must look elsewhere for the reason for this verdict. We believe that may be found in the charge of the court, for the court said: “ There may be some business men who think they can start the machinery of the criminal law and then stop it when they choose, but that is not so. If a merchant desires to avail himself of the machinery of the criminal courts to aid him in his business, and prevent employees from pilfering, he has a right to do so, but' he must take the consequences. If he chooses to use the criminal courts as a collection agency, he cannot stop the process of the criminal courts after he has collected, but the mere fact that he shows no disposition to go on and pursue the matter does not show malice, nor does it [129]*129as I view it, throw any light on the question of probable cause. It has simply educated this defendant in this particular instance to the fact that he is liable to become a defendant in an action for malicious prosecution if he uses the machinery of the criminal law as a collection agency for his business. That is what he has already learned and experienced, and I do not see that that has much to do with us, except that it is interesting.”
This charge was not only erroneous but appears to be an attempt to condemn the defendant for prosecuting a man who has committed a crime. The fact that he escaped conviction and punishment in the Court of Special Sessions was due to an error on the part of somebody in charging him with larceny instead of forgery. His acquittal in that court did not entitle him to recover $3,000 damages against the defendant in a civil action, or even $1,500 to which he consented to reduce the verdict.
There was no evidence in the case to warrant the assertion that the defendant in this action brought any proceedings to collect money. The only proceeding brought for the collection of money was that instituted by the plaintiff to recover the $100 which he had deposited as security.
Plaintiff owed money to defendant. Defendant owed plaintiff nothing. The court’s remarks that defendant was using the criminal courts as a collection agency were not based on any evidence in the case, had no application whatever to the issues and could have no other effect than to prejudice the jury against the defendant.
Again the court charged the jury: “ Mind you, you have nothing to do with teaching the defendant a lesson for starting the criminal machinery in motion, and then trying to stop it; he probably will not do it again. He has found it costs money to hire lawyers and defend himself when he does try to use the machinery of the criminal law as a collection agency; but here we get down to the question which is the issue in the case.”
It would seem unnecessary to devote much time to demonstrating the fact that these unwarranted assertions would leave very little hope for a defendant in a case of malicious prosecution, even, as here, where the prosecution was meritorious and proper, a prosecution for which defendant should not have been censured, and for which on the evidence submitted he was not liable under well-settled principles of law.
Contrast the language of this charge with that used by other courts, and especially that used by this court in Macauley v. Starr, Inc. (194 App. Div. 643, 654), where Mr. Justice Smith said: “ In Newell on Malicious Prosecution (at p. 21) the law is thus [130]*130stated: ‘ Actions for malicious prosecution are regarded by law with jealousy. Lord Holt said more than two hundred years ago that they “ ought not to be favored but managed with great caution.” Their tendency is to discourage prosecution for crime, as they expose the prosecutors to civil suits, and the love of justice may not always be strong enough to induce individuals to commence prosecutions, when, if they fail, they may be subjected to the expense of litigation, if they be not mulcted in damages.’ Further, in section 14, the author says: ‘Suits by which the complainant in a criminal prosecution is made liable to an action for damages, at the suit of the person complained of, are not to be favored in law, as they have a tendency to deter men who know of breaches of the law from prosecuting offenders thereby endangering the order and peace of the community.’ Further, under section 15, the author says: ' While the court should not discourage actions for malicious prosecutions by establishing harsh rules of evidence, or by the rigid principles of law, by force of which a party may be deprived of an important remedy for a real injury, at the same time, all proper guard and protection should be thrown around those who, in obedience to the mandates of duty, may be compelled to originate and carry on a criminal prosecution which may from any cause terminate in favor of the accused.’ ”
In Anderson v. Dyer (188 App. Div. 707, 712) it is stated: “ Actions for malicious prosecution require more than usual care in the trial thereof, that an injustice may not be done the defendant.”
An action will not lie merely because a merchant has unsuccessfully resorted to the criminal courts to punish a wrongdoer.
Public policy favors prosecution for crime and affords such protection to the citizen causing the prosecution of another in good faith and on reasonable grounds, as is essential to public justice, without the sacrifice of the right of the individual. An action will not lie merely because the criminal courts have been resorted to unsuccessfully.
In Heyne v. Blair (62 N. Y. 19, 22) the court said: “ Probable cause, as defined in the books, is such a state of facts and circumstances as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice upon the facts within his knowledge, to believe that the person accused is guilty.”
In Halsey v. N. Y. Society (234 N. Y. 1) the court said: “ In an action for malicious prosecution one of the elements of plaintiff’s case is lack of probable cause. Whether or not this fact has been established may be for the jury to determine. Or it may become [131]*131a question of law for the court. It is for the jury either when the circumstances upon which the answer depends are disputed or where conflicting inferences may fairly be drawn from them.”
In this case there was not only evidence of probable cause, but it was apparent that the prosecution was meritorious.
The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Dowling and Smith, JJ., concur; Mereell and Finch, JJ., dissent.