APPEAL from an order of the Supreme Court at Special Term (BRADY, J.), entered July 19, 1954, in New York County, which denied a motion by defendant for judgment on the pleadings and admissions or in the alternative for summary judgment.
Frank H. Gordon of counsel (George G. Hunter, Jr., with him on the brief; Cuddeback & Cuddeback, attorneys), for appellant.
William Sardell of counsel (Earl I. Gallant with him on the brief; Earl I. Gallant, attorney), for respondent.
Defendant appeals from the denial of his motion for judgment on the pleadings and admissions, or, in the alternative, summary judgment.
Plaintiff instituted this action for malicious prosecution, alleging that defendant had, maliciously and without probable cause, charged plaintiff, in an information filed with a Justice of the Peace, with malicious mischief for causing a tree on defendant's land to be cut down.
On the basis of this information, defendant, allegedly, then procured the issuance of a warrant for plaintiff's arrest. It is further alleged that plaintiff was acquitted and the prosecution terminated, all to her damage. In fact, however, as she later admitted, plaintiff was not 'acquitted', but the information was dismissed, on her motion, by the Justice of the Peace. The ground for the dismissal was jurisdictional, the Justice being of the opinion, as plaintiff urged, that he had no power to determine title to realty.
Unquestionably, it was gross error to have dismissed the information for the assigned reason. It is defendant's contention, however, that, because of this erroneous determination of jurisdiction at behest of plaintiff in this case, there has been no termination of the criminal proceeding in favor of plaintiff. We cannot sustain this view.
It is elementary that in order to make out a cause of action for malicious prosecution arising out of a criminal proceeding, plaintiff must allege and prove (1) that defendant instituted or continued a criminal proceeding against plaintiff; (2) malice; (3) absence of probable cause; (4) termination of the proceeding in favor of plaintiff; and (5) damages. (Keller v. Butler, 246 N.Y. 249; Prosser on Torts [1941 ed.], p. 862; 54 C. J. S., Malicious Prosecution, § 4.) The fourth element is established where the proceeding is dismissed on the merits or disposed of in such a way that a new proceeding must be commenced if the prosecution is to be pressed. (Robbins v. Robbins,
133 N.Y. 597; Prosser on Torts [1941 ed.], pp. 867-868; 54 C. J. S., Malicious Prosecution, § § 55-59; Restatement, Torts, § 659.) If the magistrate acted judicially, even though erroneously, it is enough. Specifically, it is immaterial whether the particular proceeding was terminated correctly by the court in favor of plaintiff, or whether the error, if any, was patent or not. (Robbins v. Robbins, supra; see
Halberstadt v. New York Life Ins. Co., 194 N.Y. 1, 13-14.) The rule is different, of course, where the determination, not on the merits, is accomplished by trick or device or its fraudulent equivalent. (Halberstadt v. New York Life Ins. Co., supra.)
But, it is conceded that no such factor exists in this case.
Of course, as already noted, in order to succeed in this action, plaintiff must also prove an absence of probable cause. This element of the cause of action, however, is distinct from that of favorable termination, and, termination without a hearing on the merits, as was so in this case, is not evidence of probable cause. (Kezer v. Dwelle-Kaiser
Co., 222 App.Div. 350, 356; 54 C. J. S., Malicious Prosecution, §
Accordingly, the order should be affirmed, with ...