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Court of Appeals of the State of New York
Jan 1, 1867
36 N.Y. 11 (N.Y. 1867)


January Term, 1867

Bogardus Brown, for the appellant.

John H. Reynolds, for the respondent.

The objection by defendant to the question put by plaintiff's counsel to the plaintiff, as a witness, "was what you swore to on that occasion true?" was properly overruled. The malicious arrest of the plaintiff by the procurement of the defendant, for the crime of perjury alleged to have been committed by the plaintiff upon a trial in the Marine Court, is the ground of the action. The "occasion" referred to in this question was the trial in the Marine Court.

There can be no doubt that the question of the plaintiff's guilt or innocence of the charge made against him was involved in the case, for if the charge was true, there could be no want of probable cause. The fact then which this question called for was clearly pertinent and material. The objection is not to the general form of the question but to its substance. No error was committed in overruling the objection.

The defendant's motion for a nonsuit was properly denied. The evidence proved, or tended to prove, all that it was necessary to prove to maintain the action. It was sufficiently shown that the prosecution was at an end. The complaint was dismissed by the magistrate "in consequence of the complainant not appearing to prosecute at the time to which the case was adjourned." This was a sufficient termination of the prosecution. ( Clark v. Cleveland, 6 Hill, 344; Secor v. Babcock, 2 Johns., 203; Purcell v. Mac Namara, 9 East., 361; Burhans v. Sanford, 19 Wend., 417; Watkins v. Lee, 5 Mees. Wels., 270.) The recognizance which appears in the case as part of the proceedings before the justice, or rather appended to such proceedings, by which the plaintiff was bound to appear at the next Court of General Sessions, is entirely inconsistent with the entries in the minutes showing the adjournments, and that the plaintiff was bailed to appear for examination, and was at the adjourned day discharged. It was never certified to the Court of General Sessions, and was manifestly never used in any way. It comes into the case after the certificate of the clerk of the court authenticating the proceedings in court only, without any authentication, and is not made the ground of any application on the trial. It should be regarded as a paper having no significance.

The charge to the jury contained the substance of all the defendant's requests to charge, so far as they were legally correct.

I am of the opinion that the judgment appealed from should be affirmed.

On the question of probable cause, the charge of the judge was substantially in accordance with the propositions submitted by the defendant. On the question of malice, he properly declined to withdraw the issue from the consideration of the jury. He instructed them that if there was probable cause for the complaint, even though it was made from malicious motives, their verdict should be for the defendant. There was no error in refusing to charge in the precise terms of the requests as framed and submitted.

It is suggested by the defendant's counsel that as the plaintiff, in the first instance, entered into a recognizance to appear and answer any indictment, that might be preferred against him in the Court of Sessions, his subsequent discharge did not terminate the prosecution. No such point was taken at any stage of the trial. There was no allusion to it in the requests submitted to the judge, and it was not suggested as a ground for dismissing the complaint. If the defendant intended to raise any such question, it should have been specifically brought to the notice of the court. It is apparent, from the evidence, that there was no foundation for such an objection. The recognizance was provisional, and fell when the prisoner was discharged. It was not returned to the Court of Sessions; no indictment was found against the plaintiff; and the present action was not brought until after the term named in the recognizance, and the abandonment of the prosecution by the defendant.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.

Summaries of


Court of Appeals of the State of New York
Jan 1, 1867
36 N.Y. 11 (N.Y. 1867)
Case details for


Case Details

Full title:MICHAEL FAY, Respondent, v . GEORGE O'NEILL, Appellant

Court:Court of Appeals of the State of New York

Date published: Jan 1, 1867


36 N.Y. 11 (N.Y. 1867)

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