#### GRIFFIN v. KEENEY.

(Supreme Court, Appellate Division, Fourth Department.

March 26, 1898.)

1. Malicious Prosecution — Malice — Probable Cause — Evidence—Sufficiency.

K. and G., by agreement, each furnished part of the capital, and bought and sold merchandise for their mutual profit. They kept books in the firm name, and had several accountings, at one of which it was found that G. was overdrawn. He offered to- withdraw from the agreement, and turn over property to K. in settlement, but K. insisted that he continue in the business. At a later accounting, G. was still overdrawn; and in settlement be turned over property in part payment, and gave bis note for $1,000 for the balance, for which K. receipted in full of account. The note was placed in judgment, and G. tendered a payment thereon, which was refused by K., who then decided to institute criminal proceedings. *Held,*that a prosecution of G., at the instance of K., for the larceny of $1,000, was malicious and without probable cause.

2. Same—Instructions—Settlement.

A request for an instruction that, if money was misappropriated by the plaintiff, a subsequent settlement between the plaintiff and defendant as for debt on an implied contract did not bar a criminal prosecution, was sufficiently covered by an instruction that, if money was stolen, there could be an adjustment of the indebtedness, and the crime still remain, and that the defendant could secure his debt, and then cause the arrest of the plaintiff for the crime.

3. Same,

In an action for malicious prosecution, it was shown that, on a settlement between plaintiff and defendant, money afterwards claimed by the defendant to have been stolen was treated as a debt. *Held*to be a circumstance for the consideration of the jury in determining whether the defendant believed that plaintiff was guilty of larceny.

Appeal from trial term, Allegany county.

Action by Mead E. Griffin against Fred B. Keeney. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before HARDIN, P. J., and FGLLETT, ADAMS, GREEN, and WARD, JJ.

Smith & Dickson, for appellant.

Johnson & Charles, for respondent.

*722HARDIN, P. J.

On the 19th of October, 1896, this action was commenced; and the plaintiff, in his complaint, alleges that on the 12th day of May, 1896, the defendant, “maliciously, wrongfully, and unlawfully, and without any reason or probable cause, and maliciously intending to injure the plaintiff in his good reputation, appeared before one H. E. Dudley, at the town of Angelica,” a justice of the peace of said town, and charged this plaintiff, before said justice, with the crime of grand larceny in the first degree, “and with having feloniously stolen one thousand dollars, lawful money of the -United States, from said defendant, and, maliciously and without probable cause, procured said justice of the peace to grant and issue a criminal warrant for the arrest of this plaintiff upon said charge.” It is alleged that a warrant was issued upon the application of this defendant, and delivered to a constable, and that the plaintiff was arrested and imprisoned under said warrant at the town of Covington, Wyoming county, on the 30th of May, 1896, and taken thence by the constable to Angelica, “and there kept and imprisoned under said warrant until the- 1st day of June, 1896,” when the plaintiff was taken before the justice, and an examination was had upon the charge, and the justice held the plaintiff to answer the same before the grand jury, and the plaintiff gave bail. It is alleged that the defendant ^caused this plaintiff to be charged before the grand jury of the county of Allegany with the said crime of grand larceny in the first degree; and the grand jury of said county before the commencement of this action dismissed the said charge against this plaintiff, and acquitted and discharged this plaintiff of the same, and said prosecution was fully determined and ended.” The answer of the defendant contained several denials, and alleged “that he had good and reasonable cause for said prosecution.” Upon the trial it appeared that the defendant had presented to a justice of the peace an information charging the plaintiff with the crime of grand larceny, in having, about the month of January, 1895, feloniously stolen about the sum of $1,000, the property of the defendant; that the plaintiff was arrested under the warrant issued by the justice May 30, 1896, at Pearl Creek, in the county of Wyoming, about 40 miles from the justice’s office, on Saturday; and on Saturday and Sunday, May 30th and 31st, he was taken to Angelica, and had his examination, and the justice required him to give bail, and he gave bail; and subsequently the grand jury dismissed the charge. It appeared by the evidence: That in the fall of 1892 the plaintiff and defendant entered into an agreement to carry on the business of buying and selling hay at Cuba, and in that vicinity. Under that agreement the plaintiff was to put in $450 of the capital for two hay presses, and to furnish one horse and buggy and harness to use in the business. That the defendant was to furnish the balance of the capital. The plaintiff was to buy the hay, and the defendant was to sell it. The plaintiff was to pay for the hay, and the expenses of the business; and the defendant was to collect the pay for the hay, when sold, and to furnish money as needed from time to time. There was some evidence tending to show that, by the terms of the arrangement, each was to share in the profits and losses equally.' The books were kept by *723the defendant, in which the business transactions were entered under the heading of “Keeney & Griffin,” and charges were made therein, and credits given, under that firm name. The defendant kept accounts of the business under that name, in which were shown the prices upon the sale of the hay. Upon the trial the defendant alleged that the plaintiff was not to share the losses, and insisted that the arrangement was that the plaintiff was to have one-half the profits for doing the work. That position was controverted by the plaintiff, and considerable evidence was given tending to show that the parties were partners, and that, when they figured up the business on the basis that the plaintiff was to stand one-half the losses, they treated the relations between them as that of co-partners. The testimony given by Morgan was to the effect that in the forepart of January, 1893, he went with Keeney and Griffin to purchase hay, and to introduce them to the farmers, and stated repeatedly that they were a new firm in Cuba, that was responsible, and such statements were made in the presence of Keeney, who in no way objected to the same. Evidence was given in behalf of the plaintiff tending to show that a part of the arrangement was that he was to draw out for his household expenses, from time to time, such money as he should require. The defendant controverted that part of the alleged arrangement. The transactions were looked over between the parties at the end of each season, the first looking over being in June, 1893; and the amount of money furnished by Keeney and paid out by Griffin on different occasions was ascertained and posted in Keeney’s books, and the defendant then estimated the profits at $2,300 for the preceding year. It appeared that Griffin had drawn out about $816.56. Griffin kept no entries showing what moneys were received from the sale of hay, relying wholly upon the record of sales kept by Keeney at his office. At the end of the second season, and in the summer of 1894, the parties again went over the business, and had a settlement, and found that Griffin was charged with $1,414.01 more than he had paid out for hay and expenses; and at the time of that looking over it was ascertained that the business had not been as profitable as the preceding year; and the plaintiff then sought to withdraw, and offered to turn over some property to balance his account, but the defendant insisted that he should continue in the business, in the faith that they would have better results later on; and the business was continued until the spring of 1895, when a further settlement was had, and it was then found that the plaintiff had received only $444.50 more than he had paid out in the business that season; and on the conclusion of that settlement the plaintiff turned over to the defendant $1,145 in property, and gave the defendant his note, signed by the wife of the plaintiff, for $1,000,—allowing, apparently, the only profits to the plaintiff for the entire period, of something less than $600. The note was subsequently put into a judgment, and proceedings supplementary to execution were had. Prior to April 30, 1896, the plaintiff wrote to the defendant, and inclosed him $15 to apply on the judgment. That draft was returned to the plaintiff, in a letter written by the defendant to the plaintiff, dated April 30, 1896, which contained the following language:

> *724• “Mr. M. E. Griffin, Pearl Greek, N. Y—Dear Sir: Inclosed find your dft. for §15.00 returned. My patience is exhausted. I will wait until May 6th for you to pay me what you owe. Yours, truly, F. B. Keeney.”

When the settlement of May 14, 1895, was made, the defendant executed a receipt to the plaintiff in the following words and figures: “§1,000.00. Cuba, May 14th, 1895.

> ' “Received of M. E. Griffin a note for one thousand dollars, bearing date of April 15, 1895, in full of accounts to date. F. B. Keeney.”

When the defendant was examined before the justice, he testified, viz.:

> “I fully made up my mind to institute criminal proceedings about early in May last,—soon after I received the §15 and returned it.”

It was not claimed upon the trial that the plaintiff had made any false entries in the books, and while the business was being transacted the parties met frequently at the defendant’s house. The de-° fendant testifies, viz.:

> “I should think once a week, generally, and sometimes twice, and I don’t know but occasionally three times. These frequent visits were kept up during the shipping season. As a rule, we would talk about the hay, and look over the books. He and I discussed the matters.”

The "evidence was sufficient to support a finding by the jury that the prosecution was without probable cause, and with malice. Heyne v. Blair, 62 N. Y. 22; Wass v. Stephens, 128 N. Y. 128, 28 N. E. 21.

The learned counsel for the appellant claims that the trial .judge committed an error in refusing to yield to a request made at the close of the charge. The request was in the following language:

> “I ask your honor to charge that if the jury find that the relation of co-partners did not exist between the parties, and if the plaintiff, without authority and consent of the defendant, at the time appropriated moneys, furnished him for buying hay, for other purposes, that the subsequent act of the defendant in settling as for a debt on an implied contract would be no bar to a criminal prosecution, and would not furnish evidence that the defendant did not believe that the money had been embezzled or misappropriated.”

The response made by the court to that was, viz.:

> “I decline to charge all that. I think that is a circumstance for them to take into consideration, at least, and give you the exception.”

The learned judge, in the body of his charge, had observed, viz.:

> “That from my view of the case it is not of the utmost importance whether there was technically a co-partnership relation existing between them or not. I do not regard it, from the aspect that I take of this case, from the understanding that I have of it, of the great and vital importance that counsel seem to haw, as to whether that precise relation existed or not.”

And later on in the course of the charge he said:

> “As I stated to you at the outset, I do not regard it of the utmost importance whether the real relation between these two was -that of co-partners or not. If the defendant in this case assented and acquiesced in this money being taken by the plaintiff; if he did that knowing it and ratifying it, or consenting that it be done from time to time,—then he could not, when, disaster came, when the business failed, and he was unable to collect the money out of it, charge him with committing a crime in taking this money. Because, as you see, to bring it down to a hornety transaction, if your neighbor goes to your bin and takes out grain, you know about it and assent to it, trusting that you will collect it of him at some future time, and it turns out that your neighbor becomes ir*725responsible, or does not pay, for any cause, you cannot then, for the purpose of collecting the pay or extorting the money of him, or for any other purpose, resort to the criminal law, and charge him with the commission of a crime. Criminal laws are not made for that purpose,—for the purpose of collecting debts. So I charge you, as a matter of law, that whether the relation between these two parties was that of partnership or not, if the taking of this money by the plaintiff from the defendant was regarded and treated by these parties simply as a debt between them, to be repaid by the plaintiff to the defendant out of the business, or in any other way (that is to say, that it was a simple debt between them), then he cannot later on arrest him for the appropriation of that money. It would not be an appropriation. It would simply be a debt existing from the plaintiff to the defendant, and he could simply collect it as he could any other debt. If this matter run along, each regarding the transaction as a business one, as a mere debt from Griffin to Keeney, culminating in the settlement of 1895 at the dose of the business, adjusting the indebtedness at $2,719, without any design or suggestion that this was an embezzlement by Griffin, then Keeney could not, after all this, turn .about and charge the plaintiff with the commission of a crime. Do not misapprehend me in this. They could adjust the civil matter, and still a crime be perpetrated, because Keeney had a perfect right to secure his debt, and then cause the arrest of Griffin for the commission of a crime; but he could not during this whole business connection treat this as a debt, acquiesce in the taking of the money by Griffin, and then, because of inability to pay, arrest him, accusing him of misappropriating the money,—of the crime of grand larceny. And if that is so, gentlemen, he had. no right to resort to the criminal law for the purpose of collecting this debt. * * * And if he did that; if this defendant in this case resorted to this simply for the purpose of extorting this as a debt; if he thought that he could resort to the criminal laws, and put the screws, as the expression is, to this plaintiff, and collect the money 'in that way,—he had no right to do it.”

The trial judge, in effect, had charged that the act of the defendant in settling would be no bar to a criminal prosecution, and he therefore was not required to repeat it; and whether such settlement furnished evidence that the defendant did not believe that the money had been embezzled or misappropriated, in conjunction with the other evidence, was for the jury to determine. It was for the jury to determine, in connection with the other evidence, what effect should be given to “the subsequent act of the defendant in settling as for a debt on an implied contract”; and such seems to have been the understanding of the trial judge when he observed, viz.: “I think that is a circumstance for them to take into consideration, at least.” The request was somewhat involved, and we think the exception does not present an error requiring us to interfere with the verdict.

The learned trial-judge was quite liberal with the defendant in the tone and spirit of his charge, and at the request of the defendant he charged the jury, viz.: “That, if the jury find that the charge made against the plaintiff was true, no action will lie.” And further he charged that: “If they find the charge then made was true, no action will lie.” And still further he charged the jury that: “It is not necessary to find the truth of the charge made in the criminal proceedings in order to excuse this defendant, but that the jury are only required to find probable cause.” The last request was assented to by the trial judge when he said, viz.: “Yes; I have so charged.” This case differs in its facts and circumstances from Fagnan v. Knox, 66 N. Y. 525. In that case the court charged the jury that the settlement with’ the plaintiff for the moneys which the defendant after-wards charged the plaintiff with having embezzled, “as and for a debt *726on contract, expressed or implied, such fact would be evidence that the defendant did not believe the plaintiff had embezzled the said money.” That was a clear, definite, affirmative instruction that the settlement would be evidence that the defendant did not believe the plaintiff had embezzled the money. In the case in hand it is to be observed that, in response to the request made by the learned counsel for the appellant, the trial judge simply observed, viz.: “I think that is a circumstance for them to consider.” Besides, there is no exception taken to that remark made by the judge, in terms. . The learned chief judge who delivered the opinion in Fagnan v. Knox, supra, said that the charge, as there made, “was calculated to produce an erroneous impression,” and that it gave “undue prominence to the settlement against the defendant upon the question of probable cause.” We think no such prominence or emphasis was given by the learned trial judge in the case in hand to the circumstances attending the several settlements revealed by the evidence. The trial judge casually remarked, when his attention was called to the instruction which he had given as to the settlement, that in his opinion it was “a circumstance for them to consider.” We think the charge as a whole conveyed to the jury the true rules of law applicable to the case in hand, and that the appellant has not shown an error by taking isolated nortions of the charge and criticising them. In Hickenbottom v. Railroad Co., 122 N. Y. 100, 25 N. E. 281, Bradley, J., said:

> “Although some portion of the charge, for the want of some qualification or explanation, may be subject to criticism, it is to be construed in the light of other portions of the charge, so far as it may be; and if the charge as a whole presents the questions “fully and fairly to the jury, so as not to mislead them, exceptions to detached portions of it will not be effectual for the support of error.”

We think the learned trial judge presented the case to the jury in as favorable a light as the evidence warranted, and -that the verdict of the jury should remain. Judgment and order affirmed, with costs. All concur, except WABD, J., not voting.