SUPREME COURT.

#### Mary Foote, appellant, agt. Joseph Milbier, respondent.

*Fourth Department, General Term.*

*Argued at June Term, Buffalo.*

*Decided at October Term, Rochester,*1873.

In an action for *malicious*prosecution, where the evidence tended lo show that the defendant was informed by a person that the plaintiff did the malicious mischief to defendant’s property for which she was prosecuted and arrested by the defendant; but before the defendant had commenced proceedings for such arrest, the same person who gave the defendant the information acknowledged in his presence that he had made a false statement about the mischief, and that instead of the plaintiff doing it, he, the informant himself, did it, and offered to settle the matter:

*Held,*that a *nonsuit*in the action was improper. There was a question for the jury, whether, after the last information defendant had received, he commenced his action against the plaintiff in good faith or not.

*Before*Mullin, *P. J.,*Talcott *and*E. D. Smith, *JJ.*

Appeal from a judgment of nonsuit at the Onondaga circuit. The facts, so far as the point upon which the decision turned is concerned, appear in the opinion.

Fuller, Vann *&*Brooks, *for the appellant,*

cited *Foshay*agt. *Ferguson*(2 *Denio,*617, 619); *Miller*agt. *Milligan*(48 *Barb.,*30, 33); *Haupt*agt. *Pohlman,*(16 *Abb.*[N. S.], 301).

Gray *&*Costello, *for the respondent,*

cited *Vanderbilt*agt. *Mathis*(5 *Duer,*304); *Besson*agt. *Southard*(10 *N. Y.,*236, 237); *Bulkley*agt. *Keletees*(6 *id.,*384); *Masten*agt. *Dayde*(2 *Wend.,*426).

*By the Court,*Talcott, J.

This is an action for a malicious prosecution. The plaintiff and her sister were arrested on the complaint of the defendant, charging them with malicious mischief, and were tried before the police justice of the city of Syracuse, and the complaint dismissed. The malicious *39mischief charged was the daubing of the defendant’s fence with paint. The fence wa$ in fact daubed by one Slosser, who did it while in company with the plaintiff and her sister, who were walking ahead of him, and did not see Slosser when he did it, or knowing anything about it until after it was done. The evidence tended to show that Slosser, on the day following the transaction, told defendant’s wife that the girls, meaning the plaintiff and her sister, did it, but it also tended to show that Slosser, subsequently, and before the defendant made the complaint in question, retracted, in the presence of the defendant, the statement he had made to the defendant’s wife, admitted that he, himself, was guilty of the act, and that the girls had nothing to do with it, and agreed with him, by the payment of five dollars and procuring the fence to be repainted, to settle the matter.

This, as we understand the evidence, took place before the defendant made the complaint against the plaintiff and her sister. If this is the true construction of the testimony, we think there was a question for the jury, and the plaintiff was improperly nonsuited.

It is said by Bronson, J., in *Foshay*agt. *Ferguson*(2 Denio, 617), that “ the question of probable cause does not turn upon the guilt or innocence of the accused, but upon the belief of the prosecutor concerning such guilt or innocence.”

Undoubtedly the information which the defendant had •received as to the statement of Slosser, if it stood alone, would, under the circumstances, furnish proof of probable cause for the accusation against the plaintiff; but we think . that, after it appeared that Slosser had retracted his statement and admitted its falsity and acknowledged himself as the only guilty party, there was a question which should have been left to the jury, whether the defendant, when he made the complaint, actually credited the statement Slosser first made and commenced the prosecution in good faith.

The judgment should be reversed and a new trial granted, costs to abide the event.