Kaminsky v. John F. Trommer Inc.

248 A.D. 906, 1936 N.Y. App. Div. LEXIS 8027

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1936
• Status: Published

Opinion

Order granting motion to strike out certain paragraphs of the further amended complaint and striking out said complaint reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, except as to paragraph numbered eleventh, as to which the motion to strike out is granted. An amended complaint may be served within ten days from the entry of the order hereon. When a criminal charge is sustained to the extent that a magistrate holds a defendant for the action of a grand jury, or a grand jury indicts, both of which elements occurred in this case, there is a prima fade showing of the existence of probable cause and it is incumbent upon the plaintiffs 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, to the end that if complete information had been furnished, the charges would not have been entertained. (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; Spevack v. Bedcro Realty Corporation, 241 id. 834.) Lazansky, P. J., Young, Hagarty, Adel and Taylor, JJ., concur.