In Sebring v. Van Aken (235 A.D. 420) the court said: "An action for malicious prosecution may not be founded on an ordinary civil action unless the liberty or property of the plaintiff was interfered with by some legal process."Summary of this case from Schulman v. Modern Industrial Bank
May 4, 1932.
Appeal from Supreme Court of Steuben County.
W. Earle Costello, for the appellant.
James O. Sebring, for the respondent in propria persona.
An action of malicious prosecution may not be founded on an ordinary civil action unless the liberty or property of the plaintiff was interfered with by some legal process. The proceeding described in the complaint was a civil proceeding to punish for a criminal contempt. ( Eastern C.S. Co. v. B. M.P.I.U., Local No. 45, 200 App. Div. 714; People ex rel. Stearns v. Marr, 181 N.Y. 463; People ex rel. Negus v. Dwyer, 90 id. 402; Matter of Hanbury, 160 App. Div. 662.) Still it closely resembles a criminal proceeding. It was instituted for a purpose similar to that underlying a criminal action. In our opinion, therefore, it was not an "ordinary civil action" and may be made the basis for a malicious prosecution action. ( Sachs v. Weinstein, 208 App. Div. 360; Reade v. Halpin, 193 id. 566.)
Order so far as appealed from affirmed, with ten dollars costs and disbursements.