#### Anton Scholl, Resp’t, *v.*Nicholaus Schnebel, App’lt.

*(City Court of Brooklyn, General Term,*

*Filed February 24, 1890.)*

1. Malicious fbosecutiost.

Plaintiff testified that he took a note to one L. to pay a debt of defendant’s and defendant authorized him to endorse his name thereon if L. would not take it otherwise, and plaintiff did so; that there■after defendant caused his arrest for forgery; that he was locked up for ;four hours, gave bail and the proceedings were subsequently abandoned .and he was discharged. He was corroborated by L. and contradicted by -defendant. *Held,*that the jury were justified in concluding that there was ■want of probable cause and that defendant acted with malice, and that a ■verdict of $1,000 was not excessive.

*<2.*Same—Pleading.

The allegation in the complaint that the magistrate acquitted the plaintiff is equivalent to a statement that he discharged him, as the magistrate could not try a person charged with forgery.

Appeal from judgment in favor of plaintiff and from order denying a motion for a new trial.

*Moffett &*Kramer, for resp’t; *A. Simis, Jr.,*for app’lt.

Clement, Ch. J.

This action was brought to recover damages for a malicious prosecution, and at the trial term the plaintiff recovered a verdict for the sum of $1,000. The counsel for the ■appellant contends that the verdict is against the weight of evidence, and that the damages are excessive, and, therefore, as there is an appeal from the order denying the new trial on the minutes, we are called upon to review the facts of the case. The plaintiff was a wheelwright and the defendant a blacksmith, and they carried on their business in adjoining premises and performed work occasionally on joint account, and the plaintiff bought goods in the name of the defendant, with his consent, of Nicholas Tangier. About May 16, 1887, plaintiff received a note to his own order of one John Connelly for fifty dollars for a debt due the plaintiff, who took the same to Tangier to pay a debt of defendant, and defendant told plaintiff to put his (defendant’s) name on the note if Tangier would not take it otherwise. The plaintiff presented the note to Tangier who declined to receive it unless defendant endorsed it, whereupon the plaintiff, without any concealment and in the presence of Tangier, wrote the name of defendant on the back of the note.

Subsequently, and about Jnne 80, 1888, the defendant caused plaintiff to be arrested on the charge that he forged the endorsement of said note. The plaintiff was locked up in a cell for nearly four hours and then gave bail, and subsequently, the defendant abandoned, the case, and the criminal proceedings were dismissed. The foregoing statement of facts covers the testimony ■of the plaintiff, but in many important particulars (he was corroborated by Mr. Tangier, viz., that Scholl gave him the note *677on Schnabel's account, and that he knew that the goods were ordered for Schnebel, and that the endorsement was made at his (Langler’s) request and in his presence. The defendant contradicted the testimony of the plaintiff, but the verdict of the jury has settled the questions of fact.

After carefully reading the testimony, we are satisfied that the jury were justified in concluding that there was a want of probable cause, and that the defendant acted with malice. Scholl, the plaintiff, on the testimony of Mr. Langler, did not forge the name of defendant; he was paying a debt of Schnebel’s, and Langler would not take a note of a third party without Schnebel’s endorsement. Langler evidently thought that the plaintiff was acting for Schnebel, and the jury, in this case, also so found.' Schnebel having subsequently had business troubles with Scholl, goes to a police court, and without telling counsel all the facts, makes a complaint against Scholl, and then abandons the prosecution. Frequently cases of this description are before the courts) and when a verdict for a large amount is rendered, it seems at first excessive, but on reflection the first impression is removed. A party, in the heat of passion, causes the arrest of a former clerk or partner, on the advice of a lawyer who frequents police courts and is looking for a small fee, and in order to obtain the same recommends a criminal prosecution. The person arrested is found, on an examination, to be not guilty, and after having been disgraced by confinement in a cell and published to the world as a felon, necessarily seeks redress in a suit for damages. In this case the defendant had no grounds whatever on which to base a charge of forgery against the plaintiff, and he so knew when he caused the arrest, and we, therefore, think that the verdict was not against the evidence and the damages were not excessive.

The allegation in the complaint that the magistrate did acquit the plaintiff was sufficient without any amendment, because the magistrate could not try a person charged with forgery; he could only take an examination, and a discharge, whether made after testimony was given or without testimony, was an acquittal. The proceedings before the magistrate were only admitted to show the discharge, and no specific objection was made on the trial as to the admission of the papers which precede the decision of the justice. The other exceptions we have examined and do not think well taken.

Judgment and order denying new trial affirmed, with costs.

Yah Wyck, J., concurs.