Munoz v. City of New York

Citation18 N.Y.2d 6,218 N.E.2d 527,271 N.Y.S.2d 645
Parties, 218 N.E.2d 527 Anna MUNOZ et al., Appellants, v. CITY OF NEW YORK et al., Respondents.
Decision Date09 June 1966
CourtNew York Court of Appeals

Bernard Meyerson, Brooklyn, for appellants.

J. Lee Rankin, Corporation Counsel (Bernard Burstein and Seymour B. Quel, New York City, of counsel), for respondents.

BERGAN, Judge.

Plaintiff Anna Munoz was arrested August 21, 1959 by defendant Daniel Linton, a police patrolman of the City of New York, on a charge of assault in the second degree. The Magistrate at the preliminary hearing reduced the charge to assault, third degree; and the defendant was acquitted after a trial at Special Sessions.

In this action by Mrs. Munoz and her husband against the arresting patrolman and the City of New York for malicious prosecution the Trial Term dismissed the complaint at the end of the proof and granted judgment for defendants on the law. With two Justices dissenting, the Appellate Division affirmed. The question on appeal is whether plaintiffs made out a case prima facie.

Mrs. Munoz denied assaulting defendant Linton and, since on the motion to dismiss the evidence must be viewed favorably to plaintiffs, it could not be held as a matter of law that she had assaulted him. It might well be found on the facts that a verdict in favor of plaintiffs, if one were returned, would be against the weight of evidence in view of the corroboration of defendant Linton's narrative by a fellow police officer and a hospital record which might be deemed also to support his testimony. But the case was not disposed of on the weight of evidence; the action was dismissed on the law, and this requires us to judge the record by the applicable principles of malicious prosecution.

In a single incisive sentence Judge Vann laid down the essentials of malicious prosecution in Burt v. Smith, 181 N.Y. 1, 5, 73 N.E. 495, 496. The rule has nowhere been stated more succinctly than this: 'A malicious prosecution is one that is begun in malice, without probable cause to believe it can succeed, and which finally ends in failure.'

Care must especially be taken here with the critical word 'malicious'. A man may institute a well-founded prosecution with the worst of motives and the prosecution will not be deemed malicious. Or he may act on evidence which would seem reasonably to justify making a charge, and the prosecution will not be malicious if he was mistaken about the true meaning of the evidence. Thus, in practice, 'malice' as here conjoined with 'prosecution' often comes to mean conscious falsity.

Used in this special and rarified sense 'malice' must go with a lack of probable cause. Prosser has commented on the well-understood judicial reluctance to entertain the action 'which runs counter to obvious policies of the law in favor of encouraging proceedings against those who are apparently guilty, and letting finished litigation remain undisturbed and unchallenged' (Prosser, Torts (3d ed.), 859). 'There is no other cause of action which is more carefully guarded' (Green, Judge and Jury, 338).

A rather substantial amount of judicial discussion of 'probable cause' turns on the issue whether the prosecutor acted reasonably in believing a charge was justified with the evidence at hand. In an accusation such as an assault charged on direct observation of the prosecutor and denied by the accused, however, probable cause would be a rather narrower question and could well turn on whether or not the prosecutor told the truth when he laid the charge. This, in turn, would largely be a factual question. There would be 'probable cause' in such a case, then, if the prosecutor laid a true charge.

The termination of the prior prosecution favorably to the plaintiff is essential to the maintenance of any action for malicious prosecution. But the prior acquittal or dismissal plays a special kind of role. It is a kind of pre-condition to the later action, the Sine qua non; and it is thoroughly settled that its termination favorably to the plaintiff is not conclusive in the second action; and so the truth or falsity of the original charge is open to factual reappraisal (54 C.J.S. Malicious Prosecution § 33, p. 994). Prosser has examined this problem in some detail (op. cit., pp. 858--859). The burden of proof, of course, is somewhat different in the action from what it was in the earlier prosecution. (Groom, Proof of Crime in a Civil Proceeding, 13 Minn.L.Rev. 556).

As Judge Sears noted in Kezer v. Dwelle-Kaiser Co., 222 App.Div. 350, 356, 225 N.Y.S. 722, 729, 'the essential element of want of probable cause is distinct from the element of favorable termination'. Sometimes the termination of the prior proceeding favorably to plaintiff may have been so inconclusive or have been effected by settlement or by fraud in such a way as to afford no 'foundation' to malicious prosecution (Levy's Store v. Endicott-Johnson Corp., 272 N.Y. 155, 162, 5 N.E.2d 74, 76).

Often the problem is whether the prosecutor was justified from the appearance of things in believing the charge to have been warranted. This would embrace situations where a prudent man might believe, from the facts coming to him, another guilty, even though the accused were acquitted or even innocent in fact.

In either case if the prosecutor is found to have acted in good faith in presenting truthfully the evidence which led to his complaint he incurs no liability and sometimes the record is such that the question can be decided as a matter of law and sometimes it must be left for factual resolution.

If the apparent facts are such 'that a discreet and prudent person would be led to the belief that a crime has been committed by the person charged, he will be justified, although it turns out that he was delieved and the party accused was innocent' (Carl v. Ayers, 53 N.Y. 14, 17). 'One may act on what appears to be true, even if it turns out to be false' (Vann, J., in Burt v. Smith, supra, 181 N.Y. p. 6, 73 N.E. p. 496).

Some of the leading New York cases on malicious prosecution are addressed to just this problem. In Rawson v. Leggett (184 N.Y. 504, 77 N.E. 662)...

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    ...acts alleged ( Colon v. City of New York, 60 N.Y.2d 78, 82, 468 N.Y.S.2d 453, 455 N.E.2d 1248 [1983] ; Munoz v. City of New York, 18 N.Y.2d 6, 10, 271 N.Y.S.2d 645, 218 N.E.2d 527 [1966] ; Fink v. Shawangunk Conservancy, Inc., 15 A.D.3d 754, 755, 790 N.Y.S.2d 249 [3d Dept.2005] ; Boose, at ......
  • Torres v. Jones
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