Opinion
May 2, 1949.
In an action to recover damages for malicious prosecution, order denying appellants' motion to dismiss the third amended complaint or to strike portions therefrom, modified by striking out the words "in all respects denied" and inserting in place thereof the words "granted to the extent of striking from the fifth paragraph of such complaint the words, `causing the plaintiff to sustain severe and serious injuries to his eyes, face, body and limbs'; and from the eighth paragraph the words, `and said arrest was procured by fraud and perjury'." As thus modified, the order is affirmed, without costs, with leave to appellants to answer within ten days from the entry of the order hereon. The allegation that the plaintiff was arraigned and tried before a city judge is not to be construed as meaning exclusively that the plaintiff was held for trial after a magistrate had examined into the facts (in which case it would appear, as matter of law, that probable cause for the prosecution was alleged). ( Hopkinson v. Lehigh Valley R.R. Co., 249 N.Y. 296, 300.) The allegations of paragraphs sixth and seventh of the third amended complaint are sufficient to permit the introduction of evidence on the issue of fact as to whether or not the plaintiff was held for trial after an examination into the facts by the city judge. The words ordered to be struck from the fifth paragraph of the third amended complaint ( supra) are irrelevant to the cause of action and prejudicial. The words ordered to be struck from the eighth paragraph ( supra) state mere conclusions, unaccompanied by the allegation of facts sufficient to justify their use. Nolan, P.J., Carswell, Johnston, Adel and Wenzel, JJ., concur. [See post, p. 840.]