Kaminsky v. John F. Trommer, Inc. , 290 N.Y.S. 773 ( 1936 )

The decision of this court handed down on October 23, 1936 ]248 App. Div. 806], is hereby amended to read as follows: Order granting motion to strike out certain paragraphs of the further amended complaint and striking out said complaint reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, except as to the words “ in accordance with the demand of the said defendants,” contained in paragraph eleventh of the complaint, as to which the motion to strike out is granted. When a criminal charge is sustained to the extent that a magistrate holds a defendant for the action of a grand jury, or a grand jury indicts, both of which elements occurred in this ease, there is a prima facie showing of the existence of probable cause and it is incumbent upon the plaintiffs to rebut this showing by alleging facts involving the malicious failure of the defendants to inform the public authorities of the surrounding facts or circumstances, or a malicious distortion of them, to the end that if complete information had been furnished, the charges would not have been entertained. (Hopkinson v. Lehigh Valley R. R. Co., 249 N. Y. 296; Graham v. Buffalo General Laundries Corp., 261 id. 165; Green v. General Cigar Co., Inc., 238 App. Div. 638; Spevack v. Bedcro Realty Corporation, 241 id. 834.) Lazansky, P. J., Young, Hagarty, Adel and Taylor, JJ., concur.