Colegrove v. City of Corning

• Decision Date: 05 November 1976
• Citation: 54 A.D.2d 1093,388 N.Y.S.2d 964
• Parties: Richard W. COLEGROVE, Respondent, v. The CITY OF CORNING, New York and Patrolman Terrance A. Davies, Appellants, and the County of Steuben, Defendant.
• Court: New York Supreme Court — Appellate Division

Page 964

388 N.Y.S.2d 964

54 A.D.2d 1093

Richard W. COLEGROVE, Respondent, v. The CITY OF CORNING, New York and Patrolman Terrance A Davies, Appellants and the County of Steuben, Defendant.

Supreme Court, Appellate Division, Fourth Department.

Nov. 5, 1976.

Edwin J. Carpenter, Jr., Joseph J. Nasser, Corning, for appellant, City of Corning.

Joseph J. Nasser, Corning, for appellant, Patrolman Davies.

Robert L. Miller, Elmira, for respondent.

Before MARSH, P.J., and MAHONEY, DILLON, GOLDMAN and WITMER, JJ.

MEMORANDUM.

Plaintiff-respondent sued defendants-appellants, City of Corning and Patrolman Terrance A. Davies, for false arrest and malicious prosecution. The trial court properly dismissed the cause of action for false arrest and the jury returned a verdict for the plaintiff of $55,000 as damages for malicious prosecution. Defendants contend that there was insufficient proof to submit the issues of want of probable cause and actual malice to the jury; that the trial court's charge contained misstatements of law; that improper evidence was received on the issue of damages and that the amount found by the jury was excessive.

The facts leading up to the securing of the warrant are uncomplicated. Plaintiff owned and operated a retail jewelry and watch repair business. He was arrested for having in his possession, in violation of Penal Law, § 220.45, three oil applicators which he used in the repair of watches and clocks and which were purchased from a jewelry supply house. The defendant patrolman had secured a warrant for plaintiff's arrest which charged him with having in his possession hypodermic instruments. There was no claim by the police, and a complete absence of any evidence at trial, that the instruments were used or sold for use as hypodermic needles. The one instrument which was being used contained oil. The matter was submitted to a grand jury which refused to indict plaintiff.

It is axiomatic that in determining whether a verdict is against the weight of the credible evidence the reviewing court 'must take the view of the proof most favorable to the verdict' (Dowell v. Remmer, 24 A.D.2d 542, 543, 261 N.Y.S.2d 746, 747; Hannan v. Schmitt, 18 A.D.2d 854, 236 N.Y.S.2d 107). The essentials of malicious prosecution were succinctly stated in Munoz v. City of New York, 18 N.Y.2d 6, 9, 271 N.Y.S.2d 645, 648, 218 N.E.2d 527, 529, where the court, quoting from Burt v. Smith, 181 N.Y. 1, 5, 73 N.E. 495, 496, stated: 'A malicious prosecution is one that is begun in malice, without probable cause to believe that it can succeed, and which finally ends in failure.' (See, also, Broughton v. State of N.Y., 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310.) Defendants urge that plaintiff's evidence was insufficient to support a finding of a lack of probable cause of actual malice. They claim that the court erred in charging the jury that in determining whether 'probable cause existed (it) depends upon whether a reasonably prudent person would have believed the plaintiff guilty of the crime charged on the basis of the facts known to the defendant at the time the prosecution was initiated or which he then reasonably believed to be true'. It has long been held that the rule is whether there is such a 'want of any reasonable cause such as would persuade a man of ordinary care and prudence to believe in the truth of the charge' (Burt v. Smith, supra, 181 N.Y. at 5--6, 73 N.E. at 496; see, also, Munoz v. City of New York, supra, 18 N.Y.2d at 10, 271 N.Y.S.2d at 649, 218 N.E.2d at 529; Hyman v. Central R.R. Co., 240 N.Y. 137, 143, 147 N.E. 613, 615; PJI 3:50).

Frequently, the issue of lack of probable cause is a question of law for the trial court. However, where, as in the instant case, 'it is demonstrated that there is a dispute about either the true state of facts, or the inferences to be drawn by a reasonable person from the facts which led to the prosecution, the uniform rule has been to require there be a factual resolution at a trial' (Munoz v. City of New York, supra, 18 N.Y.2d at 11, 271 N.Y.S.2d at 650, 218 N.E.2d at 530; see, also Halsey v. N.Y. Society for the Suppression of Vice, 234 N.Y. 1, 3, 136 N.E. 219, 220). Since p...