Munoz v. City of New York

• Court: New York Court of Appeals
• Writing for the Court: BERGAN; DESMOND, C.J., and FULD, VAN VOORHIS, BURKE and KEATING, JJ., concur with BERGAN; SCILEPPI
• Citation: 18 N.Y.2d 6,218 N.E.2d 527,271 N.Y.S.2d 645
• Decision Date: 09 June 1966
• Parties: , 218 N.E.2d 527 Anna MUNOZ et al., Appellants, v. CITY OF NEW YORK et al., Respondents.

Page 645

271 N.Y.S.2d 645 18 N.Y.2d 6, 218 N.E.2d 527 Anna MUNOZ et al., Appellants,
v.
CITY OF NEW YORK et al., Respondents. Court of Appeals of New York. June 9, 1966.

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[218 N.E.2d 528] [18 N.Y.2d 7] Bernard Meyerson, Brooklyn, for appellants.

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

[18 N.Y.2d 8] [218 N.E.2d 529] 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 [18 N.Y.2d 9] 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

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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...