Graham v. Buffalo Gen. Laundries Corp.

• Decision Date: 28 February 1933
• Citation: 261 N.Y. 165,184 N.E. 746
• Parties: GRAHAM v. BUFFALO GENERAL LAUNDRIES CORPORATION et al.
• Court: New York Court of Appeals Court of Appeals

261 N.Y. 165

184 N.E. 746

GRAHAM

v.BUFFALO GENERAL LAUNDRIES CORPORATION et al.

Court of Appeals of New York.

Feb. 28, 1933.

Action by Lloyd S. Graham against the Buffalo General Laundries Corporation and others. From an order of the Appellate Division (235 App. Div. 246, 257 N. Y. S. 101), which reversed as a matter of law an order of the Special Term, denying defendants' motion to dismiss the complaint, granted the motion, and certified the question, ‘Does the complaint herein state facts sufficient to constitute a cause of action?’ the plaintiff appeals by permission of the Appellate Division (236 App. Div. 774, 258 N. Y. S. 1075).

Order affirmed, and question certified answered in the negative.Appeal from Supreme Court, Appellate Division, Fourth department.

Harry J. Kelly, of Buffalo, for appellant.

J. C. Randal and Frank G. Raichle, both of Buffalo, for respondents.

POUND, Chief Judge.

The question is whether, in an action for malicious prosecution, a bare allegation in the complaint of want of probable cause is sufficient when the complaint shows on its face the presence of probable cause, i. e., that on a preliminary hearing before a magistrate on a charge of felony the magistrate held the plaintiff to await the action of the grand jury which failed to indict. The holding of the accused by a magistrate after an examination into the facts establishes prima facie probable cause for the prosecution. Hopkinson v. Lehigh Valley R. R. Co., 249 N. Y. 296, 300, 164 N. E. 104.

The complaint must state facts sufficient to constitute a cause of action. When all the facts stated, if admitted, would not allow a recovery, the complaint is bad. The holding of the accused by the magistrate shows probability of guilt, and thus rebuts and overcomes the general averment of want of probable cause, which is usually sufficient as an allegation of fact, but here becomes a mere ‘opprobrious epither.’ Dunn v. E. E. Gray Co., 254 Mass. 202, 150 N. E. 166.

This is the almost universal rule. Giusti v. Del Papa, 19 R. I. 338, 33 A. 525;Saunders v. Baldwin, 112 Va. 431, 71 S. E. 620,34 L. R. A. (N. S.) 958, Ann. Cas. 1913B, 1049;Kennedy v. Burbidge, 54 Utah, 497, 183 P. 325, 5 A. L. R. 1682;Boogher v. Hough, 99 Mo. 183, 12 S. W. 524;Wilkinson v. McGee, 265 Mo. 574, 178 S. W. 471; Dunn v. E. E. Gray Co., supra; Spring v. Besore, 12 B. Mon. (Ky.) 551;Henderson v. McGruder, 49 Ind. App. 682, 98 N. E. 137;King v. Estabrooks, 77 Vt. 371, 60 A. 84.

It would scarcely be necessary to write on this point were it not for the case of Beall v. Dadirrian, 62 Misc. 125, 115 N. Y. S. 196, affirmed on opinion below, 133 App. Div. 943,118 N. Y. S. 1094. It was there held that, in an action for malicious prosecution, the holding of a plaintiff by a magistrate after examination into the facts is prima facie evidence of probable cause only; and the general allegation that the arrest was without probable cause is sufficient to enable the plaintiff upon the trial to show that, upon all the facts in the case, there was no probable cause for the defendant's action in procuring his arrest. This rule has support in a few jurisdictions. Ross v. Hixon, 46 Kan. 550, 26 P. 955,12 L. R. A. 760, 26 Am. St. Rep. 123;Stainer v. San Luis Valley Land & Mining Co. (C. C. A.) 166 F. 220.

The distinction is based on the theory that, on a trial where both parties have presented their proofs, the effect of a judgment is to establish probable cause with finality, unless ...