#### Gustav Danzer, Appellant, *v.*Arthur J. Nathan and Others, Composing the Firm of S. J. Nathan Son & Company, Respondents.

Second Department,

June 2, 1911.

Malicious' prosecution — probable cause — trial—charge — evidence— conspiracy — dismissal of criminal proceedings.

Where in an action for malicious prosecution it appears that defendants were manufacturers of clothing; that a firm of contractors put the garments together for them, letting out part of the “buttonholing” to one S.; that S.; learning that one of the contractors had absconded, went to their shop, and took home part of the garments he found there to secure his claim against the firm for .work done; that defendants, hearing of this, demanded that he return the garments; that he refused and made a pretended sale of them to plaintiff, who occupied part of the. same building, to satisfy his alleged hen;- that plaintiff was later arrested . on defendants’ information, charged with larceny and acquitted, it is proper to charge that if the jury finds that the contractor absconded after S. had delivered the garments in his possession back to the firm; that- S. then went to the shop and retook possession, insisting on the hen which he had lost by the delivery of the goods; that he made an excessive claim, acted evasively and sold the goods to plaintiff, who occupied the same building, at a sham auction of which he gave no notice to defendants, and that defendants believed all these things to be true, there was probable cause1 for plaintiff’s arrest.

It is proper to charge that if the pretended sale was merely a ruse to change possession of the property and make it more difficult for defendants to . obtain it by civil process, and plaintiff confederated with S. to accomplish that result, then defendants had probable cause to procure his arrest.

It is indispensable to the existence of a lien that the defendant should have independent and exclusive possession, actual or constructive, of the property, and such possession must have been properly acquired and retained.

The burden of showing such possession is on the one claiming the lien. ■

Evidence of prior conduct on the part of S. and his employees and of prior proceedings tending to show a purpose on his part to secrete the property and defeat the return of the garments through civil process is admissible against the plaintiff.

A criminal conspiracy may be proved by circumstantial evidence alone, ' and it is notnecessary to prove the fact of the conspiracy before showing the acts of the alleged conspirators.

A request to charge that the jury has' a right to find from the fact that the criminal prosecution'against the plaintiff resulted in his favor, there was a want of probable cause for its institution is properly refused.

*449Although, the criminal proceedings were dismissed, credible evidence introduced by defendants showing that the crime charged was actually. committed, is a complete defense to an action for malicious prosecution.

Evidence examined, and held, that a judgment for defendants should be affirmed.

Appeal by the plaintiff, G-ustav Danzer,. from a judgment of the Supreme Court in favor of defendants, entered in the office of the clerk of the county of Kings on the 28th day of May, 1910, .upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of June, 1910, denying, the plaintiff’s motion for a new trial made upon the minutes.

*Charles G. F. Wahle,*.for the appellant.

*Emanuel J. Myers [Gordon 8. P. Kleeberg*with him on the brief], for the respondents.

Burr, J.:

The action is for malicious prosecution. From a judgment entered upon a verdict in favor of the defendants and from an order denying a motion for a new trial, this appeal is taken.

There was a sharp conflict in the evidence. It is impossible to conclude that such conflict arose from honest mistake. Some of the witnesses were clearly guilty of perjury. We are not prepared to say that the jury were not justified in accepting as credible the testimony offered on behalf of the defendants.

From the evidence in the case the jury were justified in finding the following facts: Defendants were manufacturers of clothing, furnishing the material cut and ready to he put together. Such material was delivered to a firm of contractors known as Cohen & Cohen, to complete. These manufacturers caused a part of the buttonholes to be made by their own employees, and delivered a part, for a similar purpose, to Samuel Schwartz, known. as a buttonhole maker. One evening in the latter part of October, 1906, Abraham Cohén, one of the firm of contractors, absconded. His partner, also named ' *450Abraham Cohen, remained. On the morning after the former Cohen departed, different work people employed by the firm went to the loft occupied by them, gathered up the goods that were there and carried them away, apparently to secure their respective claims. Among others was Samuel Schwartz and his assistant, the man who usually carried the goods hack and forth between the loft of Cohen & Cohen and Schwartz’s shop. Although contradicted, several witnesses for the defendant testified that, at the close of-each day, Schwartz was required to return the coats that he had taken during the, day. The reason for this requirement was on account of the insurance. There was also testimony that, the evening before Cohen absconded, all of the coats which Schwartz had taken had been returned to Cohen & Cohen. After the day in question, fifty-seven coats which had at some time been taken from Cohen & Cohen’s loft were found in Schwartz’s possession, some of them completed except for the buttonholes and some of them incomplete to the extent that there were no sleeves in them. There was also, testimony, also contradicted, that it was not the custom to send coats for the purpose of having the buttonholes made until all the other work upon the coats had been done. It does not clearly appear that Schwartz had done work on all of these coats.

The fact that Schwartz and his carrier had forcibly taken away these coats on the morning in, question was communicated to one of the defendants. Negotiations then began for a return of twenty-four of the coats which belonged to defendants. A short time after, variously stated as from three days to a week, another contractor, whose coats had also been taken, went to Schwartz and asked for the coats, and was then informed by bim that he did not have the coats,'that they were across the way in the tailor shop. Danzer, the plaintiff, conducted a tailor shop in the same building with Schwartz and on the opposite side of the hall. Demand was then made for the return of the coats taken away from the person in' charge of the tailor shop, who refused to deliver them unless three or four dollars was paid for each coat.- Schwartz claimed that the firm of Oohen <& Cohen was indebted to him for work previously done by him in about the sum of two hundred dol*451lars. It was conceded that the cost and value of the work of making buttonholes upon the twenty-four coats which belonged to the defendant, as well as upon those belonging to other contractors, did not exceed in amount the sum of three dollars.

On December fifth a summons was issued by a Magistrate’s Court, at defendants’ request, directed to Schwartz. He appeared, and the suggestion was then made that a suit in replevin should he instituted by defendants to recover the coats. There was testimony that such proceedings were instituted, but the marshal to whom the writ was delivered was unable to find the coats. Subsequently, and on the 9th of January, 1907, another summons was issued, addressed to Schwartz, in connection with the same matter, and, although the parties appeared, nothing was accomplished in securing a settlement of their conflicting claims.

In the latter part of November Schwartz, acting under the advice of an attorney, prepared a notice, asserting that he had a lien on the coats in his possession for the sum of $201.52, and requiring the owners of such property to pay the same on or before the 10th of December, 1906. The notice also contained a statement that in default of such payment the property would be sold at public sale at Schwartz’s place of business on the (blank) day of December, 1906. This notice was addressed to some of the other owners of the property, but was not addressed to the defendants. It appears, however, that a copy of this notice, served upon one of the other owners, was brought to defendants’ attention. Subsequently, and on the 17th and 24th days of December, 1906, a copy of the notice, with a date of sale inserted (December twenty-sixth), was published in the New York *Times.*There was testimony that defendants sent two of their employees on the twenty-sixth of December to Schwartz’s place of business, and were then informed that the sale had been postponed for a week. On the adjourned day, one of them attended again, and, although he remained about the premises for some time, he testified that no sale took place, nor could he obtain any definite information respecting it. Plaintiff, on the contrary, testified that the goods were offered for sale at public auction in Schwartz’s shop on the adjourned day by one of the *452attorneys for Schwartz; that, although he knew nothing of the circumstances connected with the acquiring of the goods by Schwartz, he happened to stop in at the exact moment and bought the fifty-seven coats for fifty dollars. • There was evidence tending to confirm his testimony and contradict that of defendants’ employees. Thereafter they were found in plaintiff’s possession and he again refused-* to deliver them up unless the sum of three dollars was paid to him for each coat. The defendants then went to the district attorney’s office and consulted one of the assistants in charge. He corbmunicated with Schwartz and Danzer and endeavored to persuade them to deliver up the coats to the defendants.' They refused so to do. Thereafter, upon his advice, the defendants went before a magistrate and swore out a warrant for the arrest of Schwartz and Danzer for larceny, and they were arrested. Upon the hearing before the magistrate they were discharged.

*“A*person who, with the intent to deprive or defraud the true owner, of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any' other person, '* 3⁄8 3⁄8 1. Takes from the possession of the true owner, or of any other person; 3⁄8 7⁄8 3⁄8 or secretes, withholds, or appropriates. to his own use, or that of any person other than the true owner, any 3⁄8 3⁄8 :1⁄8 personal property 3⁄8 3⁄8 3⁄8 steals such property, and is guilty of larceny.” ■ (Penal Code, § 528.)

The learned trial judge charged the jury, in substance, that, if Schwartz took the material and made the' buttonholes and then, delivered the material back to the original contractors and one of the contractors absconded after the coats had been out of the possession of Schwartz, after he had relinquished any lien that he had upon them, and if íBSchwártz then went to the shop of the contractor, retook possession of the coats and brought,them back to his own place, insisting upon a lien which he had lost by the delivery of possession, and made á claim in a larger amount than he was entitled to even if he had a lien; if he acted evasively and suspiciously and sold the goods át a sham auction, conducted by his own counsel, and gave no information to the defendants as to the time or place of sale upon inquiry, served no notice upon them, gave a notice *453to others which had the date of the sale eliminated; if the auction was a sham, fraud and device to deprive defendants of their property, and Schwartz sold them to a man who had a place of business upon the same floor, in the same building with himself — if the defendants believed all these things to he true, «they had probable cause to charge the plaintiff in this action, fhe person who bought the coats, with the crime of larceny. And he further charged that, if the pretended sale was hut a ruse, device or scheme to change possession of the property and make it more difficult for the defendants to obtain their property by civil process, and Danzer was part of that arrangement, confederating with Schwartz to accomplish that purpose — if those facts were proven by a fair preponderance of evidence, and if they believed that to he the state of facts in the case, then the defendants had probable cause to procure the arrest of Danzer.

This charge, we think, accurately stated the question of fact to he submitted to the jury, and correctly instructed them as to the law. The crucial question in the case was emphasized by a further charge made at the request of plaintiff’s attorney, to the effect that “if they find that Schwartz had not delivered the coats in question to Cohen & Cohen on the morning that Cohen absconded, and that he had a lien and in good faith asserted that lien, and that the auction sale took place in an endeavor to foreclose his hen, and that Danzer purchased these coats at that auction sale, and these facts were known to the defendants in this action, then there was no probable cause for the arrest of the plaintiff.” The court charged the request, with the addition: “And Schwartz and Danzer acted in good faith.” The original charge and the request, as modified, were satisfactory to plaintiff’s counsel, for no exception was taken thereto. Plaintiff’s request was doubtless made in consideration of the provision of the statute that “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.” (Penal Code, § 548.) *¡ -*

The question of good faith was fairly submitted to the jury, and'their verdict establishes the absence thereof. If, as the *454jury must have found, Schwartz had parted with possession of the goods before Cohen absconded, he had no lien either at common law or under the statute. At common law “It is indispensable to the existence of such a lien that the claimant should have an independent and exclusive possession, actual or constructive, of the property.” (25 Cyc. 671; *McFarland*v. *Wheeler,*26 Wend. 467; *McCaffrey*v. *Wooden,*62 Barb. 316.) “As a general rule, a common law 3⁄8 3⁄8 3⁄8 lien dependent upon possession is waived or lost by the lien-holder voluntarily and xinconditionally parting with possession or control of the property to which it attaches, and such lien cannot be restored thereafter by resumption of possession.” (25 Cyc. 675; *Sensenbrenner*v. *Mathews,*48 Wis. 250.) And at common law the right of lien does not exist even though the goods are in the possession of. the lienor, if such possession is not properly acquired or retained. (25 Cyc. 671; *Allen*v. *Megguire,*15 Mass. 490; *Randel v. Brown,*2 How. [U. S.] 406, 424.)

The statute declares that “A person who makes, alters, repairs, or in any way enhances the value of an article of personal property, at the request or with the consent of the owner, has a lien on such article, while *lawfully*in possession thereof, for his reasonable charges for the work done and materials' furnished, and may retain possession thereof until such charges are paid.” (Lien Law [Gen. Laws, chap. 49; Laws of 1897, chap. 418], § 70.) But an artisan’s lien.under. the statute must also be a lawful-possession, and the burden of proof of showing-such possession is on the lienor. *(O’Clair*v. *Hale,*35 App. Div. 77; *Wiles Laundering Co.*v. *Hahlo,*105 N. Y. 234; *Smith*v. *O’Brien,*46 Misc. Rep. 325.)

It is not necessary to consider the regularity of the proceedings in connection with the alleged sale, for the jury have found, and the evidence warrants the finding, that such sale was not a *bona fide*one.- Plaintiff contends, however, that, as against him, evidence of prior conduct on the part of Schwartz and his employees, and of prior proceedings tending to show a purpose upon his part to secrete the property and defeat the return of the coats through civil process, was improper. We think .the point is not well taken. The jury were clearly instructed that they must find a collusive arrangement between *455Danzer and Schwartz as the basis for their finding of probable cause upon the part of the defendants. It is true that Danzer denied any Knowledge of the preceding transactions between the defendants and Schwartz. There was evidence tending to contradict this, partly direct and partly circumstantial, the substance of which has been detailed. But a criminal conspiracy may be proved by circumstantial evidence alone. *(People*v. *Peckens,*153 N. Y. 576; *People*v. *McKane,*143 id. 455; *Kelley*v. *People of the State of N. Y.,*55 id. 576.) Circumstantial evidence, if sufficiently strong, may outweigh the positive statement of a party or a witness. In the case of a criminal conspiracy it is not necessary to prove the fact of the conspiracy before showing the acts of the alleged conspirators. The acts of different persons may he proved and the conspiracy thereby established. *(People*v. *Miles,*123 App. Div. 862; affd., 192 N. Y. 541.)

The only remaining point which we deem necessary to consider is presented by plaintiff’s exception to a request to charge. The court was asked to charge:. *“*That the jury have a right to find from the fact that the criminal prosecution against the plaintiff, instituted by the defendants, resulted in favor of the plaintiff, that there was a want of probable cause for the institution of the criminal prosecution against the plaintiff.”

The request was properly refused. Where the proceedings before the magistrate resulted in holding the plaintiff, this fact, unqualified as to its effect by other evidence, and unexplained, might establish a *prima facie*case of the existence of probable cause. *(Burt*v. *Smith,*181 N. Y. 7; *Schultz*v. *Greenwood Cemetery,*190 id. 276.) But it by no means follows that the converse would be the case.' In any event this request goes so far as to ask that the jury be instructed that they might find want of probable cause from that fact alone, without regard to the other evidence in the case. ■ It has been held that, notwithstanding the criminal proceedings were dismissed, if evidence was introduced on the part of the defendant showing that the crime charged was actually committed, such evidence, if credible, is a complete defense to the action. *(Barber*v. *Gould,*20 Hun, 446; *Turner*v. *Dinnegar,*Id. 465; *456*George v. Johnson,*25 App. Div. 125.) The request to charge was faulty, in that it sought to withdraw from the jury the consideration of the other evidence in the case and permit them to act merely upon a *prima facie*case unaffected- thereby. *(Platt*v. *Bonsall,*136 App. Div. 397.)

The judgment and order should be affirmed, with costs.

Jenks, P. J., Hirsoi-iberg, Thomas and Carr,- JJ., concurred.

Judgment and order affirmed, with costs.