Citation Numbers: 57 Misc. 451, 108 N.Y.S. 715
Judges: Giegerich
Filed Date: 1/15/1908
Status: Precedential
Modified Date: 1/13/2023
Taking up the points urged by the defendant’s counsel, it might be well to consider the things which it is incumbent upon a plaintiff to prove in a case of this character (for malicious prosecution), which are: first, that the defendant instigated the criminal proceedings against the plaintiff; second, that such prosecution was without probable cause; third, that it was accompanied by malice, and, fourth, that it terminated in favor of the plaintiff.
I am assuming, for the purposes of this motion, that the plaintiff has established the first and fourth propositions, thus leaving for discussion the question of probable cause and the question of malice.
How, what is probable cause? Probable cause is á reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a reasonably prudent "man in his belief that the person accused is guilty of the offense with which he is charged. It does not depend upon the guilt or innocence of the accused or upon the fact whether a crime has been committed. As was said by the Court of Appeals in the case of Rawson v. Leggett, 184 N. Y. 511: The question is not whether plaintiff’s evidence now given that he did not commit the crimes charged to him is true.
' The plaintiff in this case was charged with what is known technically in the books as disorderly conduct. According to the provisions of section ,1458 of the Consolidation Act, “ Every person in said city and county (meaning the city and county of Hew York) shall be deemed guilty of disorderly conduct that tends to a • breach of the peace who shall in any thoroughfare or public place in said city and county commit any of the following offenses, that is to say,”" — I shall not read the first and second subdivisions, because they do not apply to this case, but the third does —“ Every person who shall use any. threatening, abusive, or insulting, behavior with intent to provoke a breach of the peace or whereby a breach -of the peace may be occasioned.” These provisions have been preserved by the Greater Hew York Charter and were in force when the arrest in question was made.
The Appellate Division of the Second Department in the case of People ex rel. Frank v. Davis, reported in 80 Appellate Division Deports, at page 454, says: “ Disorderly conduct, in the abstract, does not constitute any crime known to the law; it is only when it ‘ tends to a breach of the peace > under the circumstances detailed in section 1458 of the Consolidation Act, that it constitutes a minor offense cognizable by the police magistrates of the city of Hew York, and when it in fact threatens to disturb the peace it is a misde> meanor as well under section 675 of the, Penal Code as at common law, and not within the jurisdiction of the police
How, considering the evidence in the most favorable light to the plaintiff, I am of the opinion that upon the facts disclosed the defendant was justified in making the charge which it is claimed he made; and I shall assume, as I said before, for the purpose of this motion, that he instigated the same. . •
Let us look at the facts as they were presented by the plaintiff. It appears that certain persons styled “ county detectives,” attached to the office of -the district attorney of this county, were directed by him to serve a subpoena upon one Reginald Vanderbilt to appear as a witness before the grand jury in an inquiry or proceeding against one Richard Canfield.
For some reason not disclosed, newspaper reporters became acquainted with the fact that Mr. Vanderbilt was to be subpoenaed as a witness and they were present, in numbers variously estimated by the witnesses who have testified in this case, at the house of the defendant, where it is claimed that Vanderbilt had been secreted.
-It is without contradiction, so far as I can discover, that the defendant told the reporters, who were assembled, on the morning of the day in question, that Mr. Vanderbilt was not in the house. It appears that a large number of persons had congregated in front of the defendant’s premises, as well as the adjoining, premises, many of whom were reporters in search of news; that they conversed in tones loud enough to be heard in the premises 100 Fifth avenue, of which the defendant was a part owner with his sister Mrs. Heilson, and he also owned with her the adjoining premises Ho. 98 Fifth avenue, in which the defendant had an apartment, or room.- It also appears that the lower part of Ho. 98 was leased to a tenant named Winteroth, who there conducted a piano business. It further appears that, upon the morning of the day in question, the defendant drove up to his residence in an electric cab; that, as he attempted to alight,
Then, in full view of everybody, Mr. McCarthy, the policeman and the defendant left the house; and, as they did so, attempts were immediately made by a man possessing a camera to take a photograph of the defendant, which greatly excited and annoyed him and a crowd gathered around the photographer. . • ,
Both McCarthy and the defendant told the crowd that Mr. Vanderbilt was not in the house and that they must disperse. The crowd jeered; and, laughing with the rest, was the plaintiff in this case.
All these acts constituted conduct that tended to a breach of the peace; and there is a failure to prove either a want of probable cause or the presence of malice on the part of the defendant, both of which, as I stated at the outset, are essential elements in an action of this kind.
Considerable stress seems to be laid by the counsel for the plaintiff upon the fact that the plaintiff is a newspaper reporter. ¡Reporters in quest of news have no superior rights over others in the streets or elsewhere and they are amenable
For these reasons, as well as others not discussed nor necessary to he discussed, the motion to dismiss the complaint is granted.
Motion granted.