#### Jerome B. Wass, Resp’t, *v.*Benjamin F. Stephens, App’lt.1

*(Court of Appeals,*

*Filed June 23, 1891.)*

1. Malicious prosecution—Probable cause.

The defendant had permission at the will of the Brooklyn Park Commissioners to connect a system of water pipes with their main. They withdrew their permission and directed plaintiff, one of their officers, to disconnect the system. Upon his doing so, defendant swore out a warrant without disclosing the fact that plaintiff -was acting under orders of the commissioners, upon which he was arrested and discharged. *Held,*that as there was evidence that the work of disconnecting was done in a proper manner, and so as to cause no unnecessary injury to the defendant’s pipes, there was no probable cause for the arrest.

2. Same—Penal Code, § 639.

The word “ wilfully ” in the statute means more than a voluntary act, and more also than an intentional act which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness.

Appeal from judgment of the supreme court, general term, second department, affirming judgment recovered in action for malicious prosecution.

*Wm. J. Gaynor,*for app’lt; *E. H. Kissam,*for resp’t.

1

 Affirming 24 N. Y. State Rep., 695.

Andrews, J.

The right of the park commissioners of Brooklyn to terminate their contract of May 5, 1885, with the defendant at any time, and thereupon to disconnect the water pipes of the defendant from the mains in Ocean Parkway belonging to the city and under the control of the commissioners, was by the contract dependent upon the failure or neglect of the defendant to furnish water according to his proposal, otherwise it could not be terminated and the water could not be cut off until six months after notice *883given by the commissioners of their election to terminate the agreement. On November 26, 1886, the commissioners caused a written notice to be served on the defendant that they had annulled the contract for the reason, as stated therein, that the defendant “ has not performed the conditions of the contract,” and the notice further advised the defendant that the commissioners were about to cut the connections, and notified him to protect his pipes and other property from any damage. It does not appear whether in fact the circumstances justified the commissioners in making an immediate disconnection under the terms of the contract. The commissioners thereupon by a written order dated November 27, 1886, directed the plaintiff, who was in their employment, to disconnect the pipes. While he was engaged in executing the order the defendant protested and threatened to *jug*him if he continued the work. He, however, completed it, and on the 1st of December, 1886, the defendant presented to a magistrate a verified complaint setting forth that the plaintiff and others on the 1st of December, 1886, “ did commit a misdemeanor, to wit, by maliciously and wilfully cutting the water main, the property of the Kings County Water Supply Company and Benjamin F. Stephens, in the town of Gravesend, Kings county, against the statute,” etc. The magistrate thereupon issued a warrant for the arrest of the plaintiff, upon which he was arrested and brought before the magistrate, and the proceeding was finally terminated by his discharge on the 26th of March, 1887. This is the prosecution upon which the present action is based.

It appears that the defendant when he made the complaint knew that the plaintiff in disconnecting the pipes was acting under the orders of his superior officers, the park commissioners. But the defendant did not disclose this fact in his complaint to the magistrate. When the plaintiff was brought before the magistrate the proceedings were adjourned, and, as appears from the testimony on the part of the plaintiff, the defendant insisted that the plaintiff should be “locked up.” There was evidence given tending to show that the work of disconnecting the pipes was done in a proper manner and so as to cause no unnecessary injury to the defendant’s pipes.

The court, on the trial, submitted to the jury the question of probable cause for instituting the prosecution before the magistrate, and also the question of malice. The jury found against the defendant on both questions, and it is now insisted that there was not only no evidence of the absence of probable cause, but that it affirmatively appeared upon the plaintiff’s own showing that there was probable cause for the arrest. The Penal Code, § 639, provides that “ any person who wilfully or maliciously displaces, removes, injures or destroys * * * 8. a pipe or main for conducting water or gas * * * is punishable by imprisonment for not more than two years.”- The complaint made by the defendant before the magistrate charged the plaintiff with an of-fence under this statute, and to sustain the present action it was incumbent upon the plaintiff, among other things, to give evidence showing, or from which the jury might find that the defendant *884had no probable cause for believing that the plaintiff had committed the crime charged. The action for malicious prosecution is very ancient. The law puts no direct restraint upon the institution by one person of a civil action or a criminal prosecution against another. He may put in motion the civil or criminal law at his pleasure for the enforcein ent of an alleged private right, or the punishment of an alleged public wrong. But if he acts from malice and institutes a groundless prosecution against another, either civil or criminal, the law affords to the injured party a remedy through an action for damages for malicious prosecution. The plaintiff, to maintain the action, must show that the prosecution was instigated by the defendant, that it has been determined in his favor, that there was no probable cause and that the defendant acted from malice.

The question of probable cause may be a question of law for the court or of fact for the jury, depending upon the circumstances. If the facts are undisputed and admit of but one inference, the question is one of law; if disputed, or if capable of opposing inferences, the question is for the jury. *James*v. *Phelps,*11 A. & E., 483.

It is plain that the plaintiff committed no criminal offense in disconnecting the pipes. The work was done on the premises under the jurisdiction of the commissioners and by their direction. Whether or not the commissioners were justified under their contract with the defendant in directing the pipes to be disconnected, was a matter not within the knowledge of the plaintiff and with which he had no concern. He was bound to execute the orders of his superiors, so long as they required him to do nothing, in its nature criminal. H the commissioners violated their contract with the defendant, he had his remedy by action. When the defendant applied to the magistrate for a warrant, he was chargeable with knowledge that in obeying the directions of the. park commissioners the plaintiff had not “ maliciously and willfully” disconnected the pipes, as charged in his complaint He did not disclose to the magistrate the relation in which the plaintiff stood to the commissioners, or the circumstances under which he acted.

There was at least evidence to go to the jury upon both the question of probable cause and of malice. While it is true that what constitutes probable cause, where an arrest has been made, does not depend upon the question whether the offense has been actually committed, or upon the innocence of the accused, but upon the prosecutor’s belief of his guilt, based upon reasonable grounds, 4 Cush., 288; *Fagnan*v. *Knox,*66 N. Y., 525, nevertheless, applying this test in this case, the jury were justified in their conclusion that the defendant had no reasonable ground for believing that the charge made by him was true.

The plaintiff intentionally disconnected the pipes, and it may be conceded by so doing violated a right of the defendant. But the word “ wilfully ” in the statute means something more than a voluntary act, and more also than an intentional act which in fact is wrongful. It includes the idea of an act intentionally *885done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantoness or lawlessness.

Our attention has been called to the case of *Anderson*v. *How,*116 N. Y., 336 ; 26 N. Y. State Rep., 787, as justifying a broader interpretation. There is some color for this claim in some remarks in the prevailing opinion, but as we understand the case the judgment proceeded on the ground that upon the evidence the existence of probable cause was proved, in that the act for which the plaintifE was arrested, was wanton and malicious.

We find no error in the record and the. judgment should be affirmed.

All concur, except Finch, J., absent.