Williams, J. :
It is- undoubtedly true that the judgment should be' sustained, if the termination of the prosecution was an issue in the case, and there was a failure of proof on that issue, even though the trial court dismissed the complaint solely on the ground of the failure of proof as to the want of probable cause. In Marvin v. Universal Life Ins. Co. (85 N. Y. 278) it was held that although the court put its decision in granting a motion for a nonsuit solely upon a ground not tenable, yet, if there was another sufficient ground for granting the motion, of which the plaintiff was fairly and fully apprised at the time the motion was granted, the judgment should be sustained. In the case at bar the defendant made a failure of proof as to the termination of the prosecution one of his grounds of motion for dismissing the complaint, and this question was discussed and considered. We are, therefore, called upon to consider whether this was a sufficient ground for dismissing the complaint. The plaintiff insists that there was no such question involved in the case under the pleadings. Our attention is called to the sixth and seventh subdivisions of the complaint. The former was admitted by the answer, the latter was denied. The answer contained no new or affirmative allegations with reference to this matter. By the sixth subdivision of the complaint it was alleged that on the 23d day of May, 1893, at the second district Police Court in the city of Mew York, an examination was had before the police justice on the charge of perjury [475]*475made by the defendant; that both the plaintiff and defendant were present at and took part in the examination, and the police justice, at the conclusion thereof, adjudged the defendant (therein) not guilty of the said charge of perjury, and fully acquitted him of the same, and discharged him. And by the seventh subdivision it was alleged, that since that time the defendant had not further prosecuted such complaint, but had abandoned the same, and that the complaint and charge made by defendant against plaintiff was wholly ended and terminated in favor of the plaintiff as aforesaid.
It seems to us quite clear that the termination of the prosecution, favorably to the plaintiff was sufficiently alleged in the sixth sub- • division, and that the allegations in the seventh subdivision were entirely unnecessary.
The complaint was a good one without the seventh subdivision. The allegations contained in the latter subdivision were merely conclusions of law so far as the termination of the prosecution was concerned, and the allegation that the . defendant thereafter abandoned the prosecution was entirely immaterial. All the essential facts constituting a termination of the prosecution favorably to the plaintiff were alleged in the sixth subdivision, and having been admitted in the answer, there was no issue as to this question to be tried or determined by the jury. The claim now made by the defendant is that the police justice at the time of the examination and the . decision alleged in the sixth subdivision of the complaint, was without jurisdiction, and his action then was void, the matter having theretofore been passed upon by him, and the case having passed into the Court of General Sessions. No such allegations were contained in the answer, and there having been no denial of the facts stated in the sixth subdivision, the question suggested could not be raised by a denial merely of the facts alleged in the seventh subdivision. The only question before us on this appeal is, therefore, whether the complaint was properly dismissed for failure of proof of want of probable cause. The want of probable cause was an issue upon which the plaintiff had the burden .of proof. The two elements of probable cause, so far as we are interested in the question here, were an honest belief of guilt, and reasonable grounds for such belief. These two elements must have concurred in order to have afforded justification. (Farnam v. Feeley, 56 N. Y. 451.)
[476]*476• The burden was not, however, upon the defendant to establish such justification. The burden was upon the plaintiff to show there ■ was no justification, and,1 therefore, a want of probable cause. This distinction must be kept in mind. It. disposes of one contention made by the appellant, that the defendant’s belief was a question for the jury, and defendant’s testimony that such belief existed did not avoid the necessity of submitting the question to the jury. If the defendant had had the burden of proof, then his testimony that such belief existed would not have been sufficient to take the case from the jury, because, being a party his credibility was for the jury. They had a right to disbelieve his evidence, and to find that the belief did not exist. But the discrediting of his evidence as to this question could have no other or greater effect than to blot his evidence from the case, and in the- absence of such evidence the question would still remain whether the plaintiff had established that he (defendant) did not honestly believe in the plaintiff’s guilt. We come back then to the question whether, upon all the evidence in the case on both sides, the jury would have been justified in drawing the inference and finding the fact, either that the defendant did not believe the plaintiff guilty, or, if he did so believe, still that he had no reasonable grounds for such belief; and in considering this question the evidence of the defendant as to what his honest belief was, should be disregarded, because the jury had a right to disbelieve him, and to pass upon the question, regardless of what he testified to upon the subject. The evidence relied upon by the plaintiff to establish the absence of belief by defendant of ¡plaintiff’s guilt, or if he did so believe, then the absence of reasonable grounds therefor, was mainly circumstantial. These parties were cousins, and. were not on friendly terms. This prosecution for perjury was commenced April 13, 1893, it being alleged that the perjury was committed September 25, 1890 or 1891, in a proceeding between the Metropolitan Elevated Railroad Company and the defendant, and that the perjury consisted in the plaintiff’s testifying that one Parke had- said of defendant, that he was a dirty, lying, perjuring son of-, etc. Between the time it was alleged the perjury was committed and the time the complaint was made, there had been several litigations between the parties, and the ill-feeling between them had materially increased. The only direct informar [477]*477tion the defendant had received that the evidence given by the plaintiff was false, was the statement of Parke that he never made, with reference to the defendant, the statement sworn to by the plaintiff. There was evidence as to-one lawyer having advised defendant not to commence the prosecution, and another having advised him in favor of the- prosecution, and evidence was given as to the statements to, and knowledge of, the two lawyers upon which such advice was given. There was evidence tending to show express malice in commencing the prosecution; indeed, express malice was practically conceded. The evidence as to all these things and as to other matters, not here referred to in detail, was- more or less conflicting. It cannot' be said in this case, and in this condition of evidence, that the facts were undisputed, and that, therefore, the question of want of probable cause was one for the court.
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Williams, J. :
It is- undoubtedly true that the judgment should be' sustained, if the termination of the prosecution was an issue in the case, and there was a failure of proof on that issue, even though the trial court dismissed the complaint solely on the ground of the failure of proof as to the want of probable cause. In Marvin v. Universal Life Ins. Co. (85 N. Y. 278) it was held that although the court put its decision in granting a motion for a nonsuit solely upon a ground not tenable, yet, if there was another sufficient ground for granting the motion, of which the plaintiff was fairly and fully apprised at the time the motion was granted, the judgment should be sustained. In the case at bar the defendant made a failure of proof as to the termination of the prosecution one of his grounds of motion for dismissing the complaint, and this question was discussed and considered. We are, therefore, called upon to consider whether this was a sufficient ground for dismissing the complaint. The plaintiff insists that there was no such question involved in the case under the pleadings. Our attention is called to the sixth and seventh subdivisions of the complaint. The former was admitted by the answer, the latter was denied. The answer contained no new or affirmative allegations with reference to this matter. By the sixth subdivision of the complaint it was alleged that on the 23d day of May, 1893, at the second district Police Court in the city of Mew York, an examination was had before the police justice on the charge of perjury [475]*475made by the defendant; that both the plaintiff and defendant were present at and took part in the examination, and the police justice, at the conclusion thereof, adjudged the defendant (therein) not guilty of the said charge of perjury, and fully acquitted him of the same, and discharged him. And by the seventh subdivision it was alleged, that since that time the defendant had not further prosecuted such complaint, but had abandoned the same, and that the complaint and charge made by defendant against plaintiff was wholly ended and terminated in favor of the plaintiff as aforesaid.
It seems to us quite clear that the termination of the prosecution, favorably to the plaintiff was sufficiently alleged in the sixth sub- • division, and that the allegations in the seventh subdivision were entirely unnecessary.
The complaint was a good one without the seventh subdivision. The allegations contained in the latter subdivision were merely conclusions of law so far as the termination of the prosecution was concerned, and the allegation that the . defendant thereafter abandoned the prosecution was entirely immaterial. All the essential facts constituting a termination of the prosecution favorably to the plaintiff were alleged in the sixth subdivision, and having been admitted in the answer, there was no issue as to this question to be tried or determined by the jury. The claim now made by the defendant is that the police justice at the time of the examination and the . decision alleged in the sixth subdivision of the complaint, was without jurisdiction, and his action then was void, the matter having theretofore been passed upon by him, and the case having passed into the Court of General Sessions. No such allegations were contained in the answer, and there having been no denial of the facts stated in the sixth subdivision, the question suggested could not be raised by a denial merely of the facts alleged in the seventh subdivision. The only question before us on this appeal is, therefore, whether the complaint was properly dismissed for failure of proof of want of probable cause. The want of probable cause was an issue upon which the plaintiff had the burden .of proof. The two elements of probable cause, so far as we are interested in the question here, were an honest belief of guilt, and reasonable grounds for such belief. These two elements must have concurred in order to have afforded justification. (Farnam v. Feeley, 56 N. Y. 451.)
[476]*476• The burden was not, however, upon the defendant to establish such justification. The burden was upon the plaintiff to show there ■ was no justification, and,1 therefore, a want of probable cause. This distinction must be kept in mind. It. disposes of one contention made by the appellant, that the defendant’s belief was a question for the jury, and defendant’s testimony that such belief existed did not avoid the necessity of submitting the question to the jury. If the defendant had had the burden of proof, then his testimony that such belief existed would not have been sufficient to take the case from the jury, because, being a party his credibility was for the jury. They had a right to disbelieve his evidence, and to find that the belief did not exist. But the discrediting of his evidence as to this question could have no other or greater effect than to blot his evidence from the case, and in the- absence of such evidence the question would still remain whether the plaintiff had established that he (defendant) did not honestly believe in the plaintiff’s guilt. We come back then to the question whether, upon all the evidence in the case on both sides, the jury would have been justified in drawing the inference and finding the fact, either that the defendant did not believe the plaintiff guilty, or, if he did so believe, still that he had no reasonable grounds for such belief; and in considering this question the evidence of the defendant as to what his honest belief was, should be disregarded, because the jury had a right to disbelieve him, and to pass upon the question, regardless of what he testified to upon the subject. The evidence relied upon by the plaintiff to establish the absence of belief by defendant of ¡plaintiff’s guilt, or if he did so believe, then the absence of reasonable grounds therefor, was mainly circumstantial. These parties were cousins, and. were not on friendly terms. This prosecution for perjury was commenced April 13, 1893, it being alleged that the perjury was committed September 25, 1890 or 1891, in a proceeding between the Metropolitan Elevated Railroad Company and the defendant, and that the perjury consisted in the plaintiff’s testifying that one Parke had- said of defendant, that he was a dirty, lying, perjuring son of-, etc. Between the time it was alleged the perjury was committed and the time the complaint was made, there had been several litigations between the parties, and the ill-feeling between them had materially increased. The only direct informar [477]*477tion the defendant had received that the evidence given by the plaintiff was false, was the statement of Parke that he never made, with reference to the defendant, the statement sworn to by the plaintiff. There was evidence as to-one lawyer having advised defendant not to commence the prosecution, and another having advised him in favor of the- prosecution, and evidence was given as to the statements to, and knowledge of, the two lawyers upon which such advice was given. There was evidence tending to show express malice in commencing the prosecution; indeed, express malice was practically conceded. The evidence as to all these things and as to other matters, not here referred to in detail, was- more or less conflicting. It cannot' be said in this case, and in this condition of evidence, that the facts were undisputed, and that, therefore, the question of want of probable cause was one for the court.
The real question here is whether from all the evidence, circumstantial and otherwise, the jury would have been justified in drawing the inference and finding affirmatively the fact that the defendant did not honestly believe the plaintiff’s guilt, or, if he did* that such belief was not based upon reasonable grounds. There was a very bad condition of feeling between the parties, and there was a long delay after the evidence was given, alleged, to have constituted the perjury, before the prosecution therefor was begun. ’ In the meantime other litigations had been had between the parties, in which the defendant had been more or less unsuccessful, and finally this prosecution was commenced. There was- some considerable conflict in the evidence given. The defendant himself was a witness, and his somewhat extended examination was before the jury. The jury had an opportunity to observe his demeanor, and to see what sort of a man he was. The question of the credibility of the witnesses, and especially of the defendant himself, was for the jury. The question whether the defendant really and honestly believed the plaintiff guilty, and what facts and circumstances were proved, ' and whether these, established to the satisfaction of the jury, were such as to induce in a reasonable mind the. belief of guilt, were questions for the jury, and in view of these suggestions the question of want of probable cause could only be taken from the jury and decided by the court if upon the condition of things developed, in the evidence, and which could have been found by the jury most [478]*478favorably to the plaintiff, the jury would not have been justified' in finding the defendant really believed plaintiff guilty, or if he did so believe that there were no reasonable grounds for such belief.
We do not think in view of the province of the jury, and the right of a party to their verdict rather than the decision of the court as to the facts, that this question.was one that could be taken from the jury and decided by the court. Whatever may be said as to the circumstances being fairly sufficient to induce a reasonable man to believe in guilt, the question still remained, whether the defendant really and honestly believed plaintiff guilty, or whether this action was the result of his malice, ill-feeling and desire' to injure the plaintiff. This was to be determined by the jury, upon a consideration of all the evidence, including, defendant’s knowledge of and relationship to the plaintiff, and we cannot say the jury may not have been satisfied that there was the absence of an honest belief in guilt, and if so that the evidence would not have sustained such verdict.
Our conclusion is'that the complaint was improperly dismissed, and that the judgment and order appealed from should be reversed and a new trial ordered, with costs of the appeal to appellant to abide the event.
Van Brunt, P. J., and Patterson, J., concurred; Ingraham and O’Brien, JJ., dissented.