Thomason v. Demotte

9 Abb. Pr. 242, 18 How. Pr. 529

• Court: The Superior Court of New York City
• Decided: October 15, 1859
• Status: Published

Opinion

Bosworth, Ch. J.

This is a demurrer to plaintiff’s complaint, as not stating a cause of action. The complaint alleges that the defendant maliciously and without probable cause, procured the plaintiff to be indicted for perjury, and to be arrested and imprisoned on that charge; that on the 6th of November, 1858, the assistant district-attorney, of the city and county of New York, wrote and certified on the indictment thus: “ On the papers there seems to have been no perjury committed, the cross-examination should be taken with the complaint, and the case is frivolous. It should never be tried. November 6th, 1858” (signed by the assistant district-attorney). “ Whereby” as the complaint avers, “ the said prosecution and all proceedings on the said indictment were and are completely and finally closed and ended.”

To maintain an action like the present, it is essential that the complaint should show that the alleged malicious prosecution has been terminated by the plaintiff’s acquittal, or in such way that no further proceedings upon it can be had against him. (Clark a. Cleveland, 6 Hill, 344.)

Even a nolle prosequi entered without the leave of the court, would be a nullity (2 Rev. Stats., 728, § 56, [§ 54]), and the court cannot enter a nolle prosequi of its own motion. (The People a. McLeod, 25 Wend., 483-572.) Nothing has been done to put an end to the indictment found against the plaintiff, except the indorsement upon it by the assistant district-attorney of his opinion, as above copied. That interposes no obstacle to bringing the plaintiff to trial upon it. The complaint, therefore, is fatally defective, and the defendant must have judgment, but the plaintiff may amend on payment of costs.