Opinion
March 27, 1936.
Appeal from Supreme Court of New York County.
Joseph S. Johnston, for the appellant.
Jacob Rosenberg, for the respondent.
Present — MARTIN, P.J., TOWNLEY, UNTERMYER, DORE and COHN, JJ.
The plaintiff failed to establish that the defendant-appellant was instrumental in procuring the plaintiff to be held by the magistrate for a violation of section 74-b Gen. Bus. of the General Business Law either by means of testimony which it knew to be false or by means of the suppression of evidence which it knew to exist. Thus the inference of probable cause arising from the determination of the magistrate was not rebutted by the plaintiff. ( Hopkinson v. Lehigh Valley R.R. Co., 249 N.Y. 296; Graham v. Buffalo General Laundries Corp., 261 id. 165.) Indeed, the plaintiff's evidence at the trial justifies the conclusion that the evidence offered before the magistrate was true.
The judgment so far as appealed from should be reversed, with costs, and the complaint as to the defendant-appellant dismissed, with costs.
Judgment so far as appealed from unanimously reversed, with costs, and the complaint as to the defendant-appellant dismissed, with costs.