#### SHIPMAN v. LEARN et al.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

Malicious Prosecution—Probable Cause.

Plaintiff’s evidence showed that he and a party of friends were gathering chestnuts from trees owned by another; that they had a basket and a small pail, and one of the party was in a tree, when one of defendants, who had charge of the premises, ordered them away; that defendants caused plaintiff’s arrest for larceny. *Held,*that the facts did not show such want of probable cause for the arrest as would sustain an action for malicious prosecution, though plaintiff was acquitted on the charge of larceny.

*970Appeal from circuit court, Cattaraugus county.

Action by Hosea Shipman against Herbert A. Learn and Edwin Booth to recover damages for an alleged malicious prosecution. At the close of plaintiff’s evidence a motion for nonsuit was sustained, on the ground that the evidence was insufficient to show want of probable cause for plaintiff’s arrest. Plaintiff appeals.

Affirmed.

Argued before LEWIS, BRADLEY, and WARD, JJ.

Henry Donnelly, for appellant.

J. R. Jewell, for respondents.

LEWIS, J.

This action was brought by the plaintiff to recover damages for an alleged malicious prosecution of the plaintiff by the defendants. One Jesse Slocum was the owner of a chestnut orchard in the county of Cattaraugus. He had made an arrangement with the defendant Learn to gather the chestnuts in the orchard upon shares. Learn had employed the defendant Booth, who resided in the vicinity of the orchard, to look after the chestnuts and protect them from the depredation of others. The plaintiff, in company with some of his friends, had occasion to pass the orchard in question, on his way to another chestnut orchard in the vicinity, where he and his friends were intending to gather some chestnuts. As they came to the Jesse Slocum orchard, plaintiff and his party stopped to get some chestnuts. The son-in-law of the plaintiff, Mr. Porter, climbed into one of the trees for the purpose of shaking off some chestnuts. The defendant Booth at this time appeared upon the scene, and inquired of the plaintiff and his party if they had permission of the owner to gather chestnuts. On receiving a negative reply he directed them all to leave the orchard. Porter at once came down from the tree. Booth went away. He returned in about five minutes, and found the plaintiff and his party still near the orchard. Booth thereupon again directed them to leave the premises, and threatened to make trouble for the plaintiff and his party. Plaintiff, upon being informed by Booth of Learn’s interest in the chestnuts, told Booth that he knew Mr. Learn, and would pay him for what chestnuts they had taken. The plaintiff’s party had with them a small pail and a grape basket. The defendants thereafter appeared before a justice of the peace of the county, and preferred a charge of larceny against the plaintiff and his son-in-law. The justice issued a warrant against plaintiff. The plaintiff was arrested, and tried and acquitted of the charge, and thereupon brought this action. Upon the motion of defendants’ attorney, the plaintiff was nonsuited at the close of his evidence, upon the ground that he had failed to establish a want of probable cause for the prosecution, on the part of the defendants.

The burden was upon the plaintiff to prove, by circumstances or otherwise, that the defendants had no probable ground for instituting the prosecution. Kline v. Hibbard, 80 Hun, 50, 29 N. Y. Supp. 807. The facts and circumstances of the case being undisputed, whether they amounted to a probable cause for the prosecution was a question of law for the decision of the court. Hazzard v. Flury, *971120 N. Y. 223, 24 N. E. 194. Booth found the plaintiff and his party in the act of appropriating to their own use property which did not belong to them, without the consent of the owner. They had with them a basket and a pail, convenient articles with which to take away any chestnuts which they might obtain. The evidence thus presented to Booth was quite sufficient to justify his conclusion that they were engaged in committing the crime of larceny. Without expressing any opinion as to the good taste and propriety of the defendants’ preferring the serious charge of larceny against the plaintiff under the circumstances, it cannot be doubted that there was sufficient evidence to justify the defendants in the belief that the plaintiff had been guilty at least of the technical crime of petit larceny. Plaintiff had appropriated to his own use the property of another, under circumstances which, so far as they presented themselves to the defendants, amounted to the crime of larceny. Pen. Code, § 528.

It is urged by the appellant’s counsel, that the prosecution was instituted by the defendants for the purpose of revenge, and our attention is called to the declaration of the defendant Booth that he would report the facts to Learn, and, if he could have his way, he would prosecute the plaintiff, with a view of having revenge. If, as we have suggested, the facts and circumstances were such as to justify the defendants in believing that the plaintiff had been guilty of the crime charged against him, and they instituted the prosecution believing that he had committed the crime of larceny, they are not liable in an action of malicious prosecution, even though the defendant Booth may have been actuated by motives of revenge in instituting the prosecution. The plaintiff, we think, failed to make a case entitling him to a verdict.

The judgment appealed from should be affirmed. All concur.