Opinion
May, 1924.
Judgment and order affirmed, with costs. All concur, except Davis, J., who dissents and votes for reversal on the grounds stated in his memorandum on the former appeal (See 202 App. Div. 775), and the additional ground that it now appears that the plaintiff has failed to establish that the defendant instigated the prosecution. ( Hyatt v. N.Y.C. H.R.R.R. Co., 162 App. Div. 367; Homeyer v. Yaverbaum, 197 id. 184; Macauley v. Starr, Inc., 194 id. 643; affd., 233 N.Y. 601; Tyson v. Bauland Co., 68 App. Div. 310; Gearity v. Strasbourger, 133 id. 701; Greene v. Frankhauser, 137 id. 124.) Crouch, J., not sitting.