Opinion
April, 1935.
Order reversed on the law, with ten dollars costs and disbursements, and defendant's motion for summary judgment denied, with ten dollars costs. The complaint states a good cause of action for malicious prosecution in that it alleges that the prosecution against plaintiff on a criminal charge was instigated by the defendant, which had falsely charged the plaintiff with being guilty of a crime, giving the details thereof, and that the proceeding thus commenced terminated on a trial by the direction of a verdict acquitting the present plaintiff of the charge. The facts constituting the alleged malicious and willful acts of the defendant, showing want of reasonable and probable cause, are stated very fully in the complaint, and Graham v. Buffalo General Laundries Corp. ( 261 N.Y. 165) and other similar cases are readily distinguishable. Assuming that rule 113 of the Rules of Civil Practice applies to tort actions (a question which we do not decide), the allegations in the complaint were sufficient to overcome the prima facie proof that an indictment had been found after the defendant had made its complaint to the authorities and caused the arrest of the plaintiff herein. Lazansky, P.J., Hagarty, Tompkins, Davis and Johnston, JJ., concur.