MacAuley v. Theodore B. Starr, Inc.

Malicious prosecution — insufficiency of evidence to connect defendant with instigation or continuance of prosecution.

Appeal from a judgment, entered February 3, 1921, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action for malicious prosecution. The complaint alleged that on January 3, 1917, the defendant authorized and directed certain of its employees to appear before the district attorney of New York county, and a grand jury, and there complain against the plaintiff, as a result of which the plaintiff was indicted for forgery; that thereafter the defendant procured the plaintiff’s arrest in St. Louis, Mo., upon this charge, as a result of which he was held there pending action upon an extradition application; that on January twenty-fifth the defendant caused and permitted one of its employees to testify before the governor of Missouri, in extradition proceedings, that the plaintiff was guilty of the crime; that as a result of this testimony the plaintiff was extradited and compelled to give bail in the New York court; that on April 4, 1917, the defendant again charged the plaintiff with the crime, and caused its employees again to testify before the grand jury, in consequence of which a superseding indictment was found; that after various depositions had been taken in the criminal case, the indictment was dismissed on the recommendation of the district attorney. The Appellate Division held that, on the evidence, plaintiff had failed to connect the defendant with the instigation or continuance of any malicious prosecution.