#### Samuel Schwartz, Respondent, *v.*Arthur J. Nathan and Others, Composing the Firm of S. J. Nathan Son & Company, Appellants.

Second Department,

June 2, 1911

Malicious prosecution -j- larceny — trial — charge — good faith.

Action for malicious prosecution brought against manufacturers of cloth- ■ ing who had procured plaintiff’s arrest on the charge of larceny for taking garments belonging to ¡them from the shop of contractors who were sewing them together, and refusing to surrender them. It appeared that plaintiff was employed by the contractors to do part of the work and learning that one-of them ¿ad absconded went to their shop to which he had returned all the garments on .which he was working and retook possession of a number of them in order .to.secure his claim against .the firm for work done. , '

Held, that the defendant wás-entitled to have the jury instructed as to the effect of the appropriation of the property with violence and the secreting of the same, and as to. the effect of willful conduct on plaintiff’s ' part not in good faith;

■ That a judgment in plaintiff’s favor should be reversed for errors in the charge. ! ' ' ' '

' Appeal by the defendants, Arthur J. Nathan and others, . from a judgment of thel Supreme Court in favor of the plain.tiff, entered in the office of the clerk of the county of Kings on the 9th day of February,! 1910, upon.the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on ' the 14th day of February,! 1910, denying the defendants’'motion for a new trial made upon the minutes.

*Emanuel J. Myers [Gordon S. P. Kleeberg*with himon the brief], for the appellants. | ■ •

*C liarles G. F. Wahle,*for the respondent.

Burr, J.:

In this action for malicious prosecution, brought by Samuel . Schwartz, the buttonhole maker referred to in the- case of *Danzer*v. *Nathan*(145 App. Div. 448), decided herewith, the plaintiff recovered a verdict.

. Without passing upon the other quéstions involved, we think *507that the judgment and order denying a motion for a new trial must he reversed for errors in the charge.

The court was requested to charge “That if the jury find that the defendant Arthur J. Nathan offered to the plaintiff to pay him the amount due for the work done upon the coats in question, and that the plaintiff refused to receive such sum and claimed to retain the goods until the sum of $201.52 was-paid him, and that the defendant Arthur J. Nathan thereafter brought the several proceedings in the Magistrates’ Court, and that the defendant Nathan thereafter brought the replevin suit to recover the possession of the- coats, and the plaintiff refused to disclose the place where the coats were so that they could not he taken under the replevin suit, and that the defendant Nathan thereafter instituted proceedings in the Magistrates’ Court by summons, whereupon he was advised to submit the matter to the District Attorney, which he did, and, at the District Attorney’s advice and counsel, made a complaint upon which a warrant was issued, under which the plaintiff was apprehended and arrested, and if the jury find that the said proceedings were instituted by the defendant for a lawful purpose, and without malice, then the verdict of the jury should he for the defendant.” And again: “ That the plaintiff had no right to take any coats belonging to the defendant from Cohen & Cohen’s place of business after Cohen’s disappearance, for the purpose of securing an indebtedness of Cohen & Cohen to him, however just and meritorious, and the taking of coats belonging to the defendant under such circumstances, and the withholding thereof from the defendant after being apprised of the facts thereof, constituted larceny.”' And again: “ That if the jury find that the plaintiff or his carrier took coats from the place of business of Cohen <& Cohen after Cohen’s disappearance, and being notified that he had defaulted in payment of his workmen’s wages, and upon which coats the plaintiff had done work and delivered the same to Cohen & Cohen without payment therefor, for the purpose of securing his claim, however just and meritorious, and if after being apprised of the true ownership of the coats he wilfully refused to deliver the coats so taken to the defendant, his actions would constitute larceny.” And again: “That *508if the jury find that the plaintiff obtained possession of the coats in question after Cohen had absconded, with the intent and for the purpose of fastening a lien thereon for the balance of $186, then and theretofore due him. for work’ on coats which, he had delivered without being paid therefor, and then *wil-fully*withheld the coats from the true owner, after demand and an offer to pay the ¡plaintiff for any work done on the coats in his possession, and the plaintiff *tvilfully*refused to accept such offer and *wilfully*withheld the coats from the defendant, then it cannot, as matter of law, be claimed that the prosecution for larceny was without foundation and support of law,, and the jury must find for the defendant.” And again: “That if the jury find that the plaintiff obtained possession of the coats in question after Cohen had absconded, with the intent and purpose of fastening a lien thereon for the balance of $186, and then and theretofore due him for work on coats which he had delivered, without being paid therefor, and then *wilfully*withheld the same from the owner, after demand and offer to pay the plaintiff for any work done' on the coats in his possession, and the plaintiff *wilfully*refused to accept such offer and *wilfully*withheld the coats from the defendant^ and if the jury further find that tile defendant believed in good faith that he had probable cause and a legal right to make the complaint in the criminal proceedings and to obtain a warrant and cause the arrest of the. plaintiff, and did so, without malice and in the honest belief that he was pursuing the proper course, the jury must give a verdict for the defendant.”

There was a sharp conflict in the evidence as to the time when Schwartz obtained possession, of the’coats and the circumstances under which: he obtained the same; as to his purpose in doing so; as to his conduct subsequently thereto, and as to his good faith in the transaction. The court had already instructed the jury in the words of the statute: “Upon an. indictment for larceny, it is a sufficient defense that the property was appropriated openly and avowedly, under a claim of title preferred in good faith, even though such claim is untenable.” Defendant was entitled to have the jury instructed as to the effect of appropriating the property with violence and secreting the same, and ás to the effect of willful conduct not in *509good faith. An exception was taken to each of these refusals. For the reasons stated in the case of *Danzer*v. *Nathan (supra)*these exceptions seem to us to he fatal.

The judgment and order should he reversed and a new trial granted; costs to abide the event.

Jenks, P. J., Hirschberg, Thomas and Carr, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.