Eberhardt v. Consolidated Edison Co. of New York, Inc.

1 A.D.2d 1001, 151 N.Y.S.2d 823, 1956 N.Y. App. Div. LEXIS 5211

Opinion

Per Curiam.

Plaintiff in this malicious prosecution action was indicted by the Grand Jury. That in itself constitutes prima facie evidence of probable cause which may be overcome only by proof that there was not a full and complete statement of facts to the Grand Jury, or that defendant falsified the evidence or kept back information of facts which might have affected the result (Hopkinson v. Lehigh Val. R. R. Co., 249 N. Y. 296; Berger v. American Nat. Fire Ins. Co., 279 App. Div. 335, 336). There was no proof adduced by plaintiff to establish any of those elements. In fact there is no proof at all from which even an inference might be drawn that there was any falsity in the evidence given by defendant’s witnesses to the Grand Jury or that there was a withholding of information which might have affected the Grand Jury’s action. Plaintiff has therefore failed to make out a prima facie case.

Judgment should be reversed, with costs, and complaint dismissed.

Peek, P. J., Rabin, Cox, Frank and Valente, JJ., concur.

Judgment unanimously reversed, with costs to the appellant, the complaint dismissed, and judgment is directed to be entered in favor of the defendant dismissing the complaint herein, with costs.