Cicurel v. Mollet

• Decision Date: 13 March 1956
• Citation: Cicurel v. Mollet, 149 N.Y.S.2d 397, 1 A.D.2d 239 (N.Y. App. Div. 1956)
• Parties: William CICUREL, Plaintiff-Appellant, v. Leon A. E. MOLLET, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 397

149 N.Y.S.2d 397

1 A.D.2d 239

William CICUREL, Plaintiff-Appellant, v. Leon A. E. MOLLET, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

March 13, 1956.

Kalman I. Nulman, New York City, of counsel (Bartley C. Crum, New York City, with him on the brief), for appellant.

Frank L. Miller, New York City, of counsel (George J. Todaro, New York City, atty.), for respondent.

Before BREITEL, J. P., and BOTEIN, RABIN, COX and FRANK, JJ.

PER CURIAM.

In this nonjury trial, the plaintiff sought recovery against the defendant upon two causes of action. The first charged that the defendant falsely caused the arrest of the plaintiff; the second charged malicious prosecution. After a trial, the court below directed the entry of judgment for the defendant on both causes of action. It is axiomatic that to sustain a cause of action for malicious prosecution the plaintiff must establish want of probable cause. We are satisfied that plaintiff failed to sustain the burden of proof with respect thereto. The trial court found that there was probable cause for the prosecution of the plaintiff by the defendant, and we would not disturb that finding on the factual issue. The judgment for the defendant on the second cause of action should, therefore, be affirmed.

With respect to the first cause of action, i. e., false arrest, a different rule of law controls. In his answer the defendant alleged 'the defendant caused the arrest of the plaintiff.' While such an allegation in the answer is not conclusive, it may be accepted as an admission against interest and may be considered with the other proof in the case.

It was substantially established on the trial that the plaintiff was taken into custody in his hotel room by two police officers and detained there for a period of approximately eight hours. During that time the officers had numerous conversations with the attorney then representing the defendant. Moreover, in an examination before trial, portions of which were read into the record, the defendant admitted that he had been advised by the detectives that his attorney had instructed them to arrest the plaintiff sometime before the plaintiff was taken into custody. In sum, from all of the foregoing and the other proof adduced upon the trial, the inference is inescapable that the defendant caused the arrest of the plaintiff.

The arrest having thus been established, there is a presumption that it was unlawful and it therefore became incumbent upon the defendant to go forward with proof establishing justification. See Cooley on Torts, 4th Ed. Vol. 1, § 109; Schultz v....