Opinion
April 15, 1957
In an action to recover damages for malicious prosecution, the appeal is from an order denying a motion to dismiss the complaint for insufficiency. Order affirmed, with $10 costs and disbursements. The allegation in the complaint that appellant had made a sworn accusation against respondent before a Judge of the District Court of Nassau County, who thereupon issued a warrant for her arrest, did not constitute an admission that there existed probable cause on appellant's part for belief that respondent was guilty of the charge made against her, so as to require the allegation of further facts sufficient to overcome the effect of such an admission. (Cf. Hopkinson v. Lehigh Valley R.R. Co., 249 N.Y. 296, 300; Graham v. Buffalo Gen. Laundries Corp., 261 N.Y. 165, 168; Chernow v. Feldman, 251 App. Div. 329.) Nolan, P.J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur.