Opinion
May, 1912.
Present — Ingraham, P.J., McLaughlin, Laughlin, Miller and Dowling, JJ. Judgment and order reversed, new trial ordered, costs to appellant to abide event.
We think that the court was in error in charging the jury as matter of law that there was a lack of probable cause for the arrest in question; and that upon the evidence it was a question for the jury to decide upon the facts existing at the time of the arrest as to whether or not there was a lack of probable cause. That question, therefore, should have been submitted to the jury. The judgment and order should be reversed and a new trial ordered, costs to appellant to abide event.