#### Thomas MacDonald, Plaintiff-Appellant, *v.*National Art Company, Defendant-Respondent.

(Supreme Court, Appellate Term,

November, 1910.)

Malicious prosecution: The prosecution — Arrest without warrant:

Termination of proceeding — In general.

An action for malicious prosecution will not lie until the proceeding complained of has terminated in favor of the defendant therein.

Where, without a warrant, plaintiff was arrested upon a charge of grand larceny and duly arraigned before a magistrate and, as a result of the complainant’s inability to prove the charge, it was dismissed, there has been such a judicial proceeding as will support an action for malicious prosecution.

Appeal by the plaintiff from a judgment of the City Court of the city of New York dismissing the complaint and from an order denying .a motion for a new trial.

Katz & Sommerich (Otto C. Sommerich &, Charles Trosk, of counsel), for .appellant.

Gould & Wilkie (Arthur K. Gotthold & George J. Thomson, of counsel), for respondent.

Bijur, J.

This action was brought to recover damages for malicious prosecution. The defendant charged plaintiff with having stolen a picture worth fifty dollars and caused his arrest by a police officer and bis arraignment before a magistrate. Tbe officer made what is commonly called a *“*short affidavitwhereupon plaintiff was held in bail for examination and, -after one or two adjournments, was discharged. At tbe several bearings before tbe magistrate the officers of the defendant were present as witnesses or otherwise and pressed the charge.

' On the trial of this action in the court below, plaintiff offered and endeavored to prove what transpired -at the hear*326ings before the magistrate; but 'all this evidence was excluded on defendant’s motion. The general ground of its exclusion is not very clear, but seems to have been that the various occurrences recited did not amount to a “judicial proceeding;” which, as well as its termination in favor of the plaintiff, is a prerequisite to an action for malicious prosecution.

The learned trial judge said that there could have been no judicial proceeding before a magistrate unless a warrant had issued. This, however, is an entirely erroneous impression. The plaintiff was arrested without a warrant by 'an officer, and duly arraigned before a magistrate, as authorized by section 177 of the Gode of Criminal Procedure. Section 188 prescribes the further proceedings and distinctly provides for the case of an arrest without a warrant. People ex rel. Farley v. Crane, 94 App. Div. 397. See also People ex rel. Ostlund v. Warden, N. Y. L. J., Sept. 17, 1910.

Apparently, also, the court below thought that, because the so-called “ short-affidavit ” would have been insufficient to warrant the holding of the prisoner for trial, the magistrate lacked -all jurisdiction, and that the further happenings, therefore, did not constitute a “ judicial proceeding.” Deference is made by respondent, in this connection, to the case of Barry v. Third Avenue Railroad Co., 51 App. Div. 385. But in that, case, the plaintiff having been arrested on the complaint of a conductor employed by the defendant, no further proceedings of any kind were taken. No one even appeared on behalf of the defendant before the magistrate to make or attempt to make any complaint. The appellate court very aptly said that there must be “ some sort of a judicial proceeding ” upon which to predicate an action for malicious prosecution. This is far from holding, however, that the written information charging the prisoner with a crime must be complete and legally sufficient before the transaction before a magistrate can be regarded as a judicial proceeding. It is true that many of the decisions speak of the magistrate’s “ lack of jurisdiction ” in a case where the information is totally insufficient; but it is lack of jurisdiction *to issue a warrant*or *make a*commitment, as the case *327may be, and the language of the opinions generally so expresses it. People v. Cramer, 22 App. Div. 189; Blodgett v. Race, 18 Hun, 132. When an information is lodged before a magistrate, either before or after an arrest, it is evident that there is presented to him for judicial .action, and thus placed within his jurisdiction, the very question whether the information authorizes the issuance of judicial process. Newfield v. Copperman, 15 Abb. Pr. (N. S.) 360. This and more was done in the case at bar; and it surely constituted, at the very least, “ some sort of a judicial proceeding.” Plaintiff should have been permitted to prove all the relevant facts in regard to it.

In the case at bar, too, there is another element, which, however, in view of my conclusions above, need not necessarily be considered, namely, that, even though the information or *“*short affidavit ” prepared by the police officer at the instance of the defendant were wholly insufficient, nevertheless, the present plaintiff appears to have voluntarily submitted himself to the jurisdiction of the magistrate and was discharged as a result of the defendant’s inability to prove the charge. Jones v. Poster, 43 App. Div. 33.

As due exception was taken to the rulings of the court below, the judgment and order appealed from are reversed and a new trial granted, with costs to appellant to abide the event.

Seabury and Page, JJ., concur.

Judgment and order reversed, and new trial granted.