APPEAL by the plaintiff, Gustav Danzer, from a judgment of the Supreme Court in favor of defendants, entered in the office of the clerk of the county of Kings on the 28th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 23d day of June, 1910, denying the plaintiff's motion for a new trial made upon the minutes.
Charles G. F. Wahle, for the appellant.
Emanuel J. Myers [Gordon S. P. Kleeberg with him on the brief], for the respondents.
The action is for malicious prosecution. From a judgment entered upon a verdict in favor of the defendants and from an order denying a motion for a new trial, this appeal is taken.
There was a sharp conflict in the evidence. It is impossible to conclude that such conflict arose from honest mistake. Some of the witnesses were clearly guilty of perjury. We are not prepared to say that the jury were not justified in accepting as credible the testimony offered on behalf of the defendants.
From the evidence in the case the jury were justified in finding the following facts: Defendants were manufacturers of clothing, furnishing the material cut and ready to be put together. Such material was delivered to a firm of contractors known as Cohen & Cohen, to complete. These manufacturers caused a part of the buttonholes to be made by their own employees, and delivered a part, for a similar purpose, to Samuel Schwartz, known as a buttonhole maker. One evening in the latter part of October, 1906, Abraham Cohen, one of the firm of contractors, absconded. His partner, also named
Abraham Cohen, remained. On the morning after the former Cohen departed, different work people employed by the firm went to the loft occupied by them, gathered up the goods that were there and carried them away, apparently to secure their respective claims. Among others was Samuel Schwartz and his assistant, the man who usually carried the goods back and forth between the loft of Cohen & Cohen and Schwartz's shop. Although contradicted, several witnesses for the defendant testified that, at the close of each day, Schwartz was required to return the coats that he had taken during the day. The reason for this requirement was on account of the insurance. There was also testimony that, the evening before Cohen absconded, all of the coats which Schwartz had taken had been returned to Cohen & Cohen. After the day in question, fifty-seven coats which had at some time been taken from Cohen & Cohen's loft were found in Schwartz's possession, some of them completed except for the buttonholes and some of them incomplete to the extent that there were no sleeves in them. There was also testimony, also contradicted, that it was not the custom to send coats for the purpose of having the buttonholes made until all the other work upon the coats had been done. It does not clearly appear that Schwartz had done work on all of these coats.
The fact that Schwartz and his carrier had forcibly taken away these coats on the morning in question was communicated to one of the defendants. Negotiations then began for a return of twenty-four of the coats which belonged to defendants. A short time after, variously stated as from three days to a week, another contractor, whose coats had also been taken, went to Schwartz and asked for the coats, and was then informed by him that he did not have the coats, that they were across the way in the tailor shop. Danzer, the plaintiff, conducted a tailor shop in the same building with Schwartz and on the opposite side of the hall. Demand was then made for the return of the coats taken away from the person in charge of the tailor shop, who refused to deliver them unless three or four dollars was paid for each coat. Schwartz claimed that the firm of Cohen & Cohen was indebted to him for work previously done by him in about the sum of two hundred dollars.
It was conceded that the cost and value of the work of making buttonholes upon the twenty-four coats which belonged to the defendant, as well as upon those belonging to other contractors, did not exceed in amount the sum of three dollars.
On December fifth a summons was issued by a Magistrate's Court, at defendants' request, directed to Schwartz. He appeared, and the suggestion was then made that a suit in replevin should be instituted by defendants to recover the coats. There was testimony that such proceedings were instituted, but the marshal to whom the writ was delivered was unable to find the coats. Subsequently, and on the 9th of January, 1907, another summons was issued, addressed to Schwartz, in connection with the ...