Burns v. Wilkinson

Decision Date24 February 1920
Citation126 N.E. 513,228 N.Y. 113
PartiesBURNS v. WILKINSON.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Robert F. Burns against Harry R. Wilkinson for malicious prosecution. Judgment for plaintiff was reversed by the Appellate Division on the ground that as a matter of law defendant had probable cause for his action (181 App. Div. 949,168 N. Y. Supp. 1103), and plaintiff appeals.

Judgment of Appellate Division reversed, and that of Trial Term affirmed.

Appeal from Supreme Court, Appellate Division, Second Department.

Walter E. Warner, of New York City, for appellant.

Clifton P. Williamson, of New York City, for respondent.

ANDREWS, J.

The plaintiff was arrested on the complaint of the defendant, the charge being larceny as defined in section 1293a of the Penal Law (Consol. Laws, c. 40). This complaint was pressed before the committing magistrate. The plaintiff was held for the grand jury, indicted upon the defendant's testimony, and subsequently acquitted. Thereupon he brough this action for malicious prosecution. He obtained a judgment which has been reversed by the Appellate Division, not on the facts, but because it was said that, as a matter of law, the defendant had probable cause for his action.

[1][2] Assuming as we must, therefore, the truth of the plaintiff's story, giving him the benefit of all the inferences to which a jury might say he is entitled, and resolving all disputed points in his favor, we must determine whether this conclusion was justified, or whether there was involved a question of fact.

‘The propriety of defendants' conduct in causing him to be indicted is to be decided by the facts as they appeared to be at the time the prosecution was instituted, and the question is whether these facts as they then appeared were such that a discreet and prudent person would have been led to the belief that the accused had committed the crime with which he was charged. If defendants had knowledge of facts actual or apparent strong enough to justify a reasonable man in the belief that they had lawful grounds for prosecuting the plaintiff in the manner complained of, then probable cause was present, and this action will not lie.’ Rawson v. Leggett, 184 N. Y. 504, 511,77 N. E. 662, 664.

What facts then were present in Mr. Wilkinson's mind when he made this charge?

[3] For some years he had kept his car in a garage in which a number of other private cars were stored, and which also accommodated some transient customers. The storage room itself was some 40 feet wide and some 80 feet long approached from the street by a narrow hallway. As one entered it to the right smaller cars were placed facing the wall. To the left six larger cars, among which was the defendant's, were placed in a double row parallel with the side wall. In front was a wash rack, and on one or both sides of it was a place for two other cars. When the garage was full this left an aisle or runway through the center of the room from the hall to the wash rack about 10 feet wide. The defendant's car was 7 feet and 7 inches in width, and there was therefore small clearance on each side.

On the evening of January 13, 1916, the plaintiff had been employed in this garage for several weeks. He was a night washer and his business was to sell gasoline and oil to customers and to wash and shift cars as they came in. The defendant was well acquainted with him, and knew that he was so employed. He reached the garage with his car about 11:45 p. m. He found there the plaintiff alone, and apparently in charge. The garage was practically full. The place where defendant's car usually stood was occupied by a shorter car, which should have been upon the right-hand side. On the wash rack was another car. Under these circumstances, expecting it to be washed and put in place, the defendant left his car in the runway. This was then completely closed. He must have known that it was impossible to shift the car standing in the stall usually occupied by him to the other side of the room, or to put his own car upon the wash rack without unblocking this runway. He knew that this could only be done by backing his own car into the hallway or into the street. He knew that if the hallway was occupied, any other car that might come to the garage could not...

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11 cases
  • Watson v. City of New York
    • United States
    • New York City Court
    • June 18, 1968
    ...18 N.Y.2d 6, 271 N.Y.S.2d 645, 218 N.E.2d 527; Halsey v. N.Y. Soc. for the Suppression of Vice, 234 N.Y. 1, 136 N.E. 219; Burns v. Wilkinson, 228 N.Y. 113, 126 N.E. 513; Long I. Bottlers Union v. Seitz, 180 N.Y. 243, 73 N.E. 20; Carl v. Ayers, 53 N.Y, 14; see Burt v. Smith, supra; Brown v. ......
  • Halsey v. New York Soc. for Suppression of Vice
    • United States
    • New York Court of Appeals Court of Appeals
    • July 12, 1922
    ...circumstances upon which the answer depends are disputed or where conflicting inferences may fairly be drawn from them. Burns v. Wilkinson, 228 N. Y. 113, 126 N. E. 513;Galley v. Brennan, 216 N. Y. 118, 110 N. E. 179. Theophile Gautier is conceded to be among the greatest French writers of ......
  • Boyce v. Greeley Square Hotel Co.
    • United States
    • New York Court of Appeals Court of Appeals
    • February 24, 1920
    ... ... Y. 1, 100 N. E. 430, 45 L. R. A. (N. S.) 766, Ann. Cas. 1914C, 288; Williams v. Vanderbilt, 28 N. Y. 217, 84 Am. Dec. 333; Wilkinson v. Downton, [1897] 2 Q. B. D. 57; Sloane v. Southern California Ry. Co., 111 Cal. 668, 44 Pac. 320,32 L. R. A. 193;Austro-American S. S. Co. v ... ...
  • Smith v. Fontana
    • United States
    • U.S. District Court — Southern District of New York
    • December 1, 1942
    ...for malicious prosecution, even when express malice is proved." See also Rawson v. Leggett, 184 N.Y. 504, 77 N.E. 662; Burns v. Wilkinson, 228 N.Y. 113, 126 N. E. 513; and Simpson v. Coastwise Lumber & Supply Co., 239 N.Y. 492, 147 N.E. 77. Restatement of the Law of Torts, Vol. 3, Sec. Appl......
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