Wass v. Stephens

• Decision Date: 23 June 1891
• Citation: 28 N.E. 21,128 N.Y. 123
• Parties: WASS v. STEPHENS.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 123

28 N.E. 21

WASS

v.STEPHENS.

Court of Appeals of New York.

June 23, 1891.

Appeal from supreme court, general term, second department.

Action for malicious prosecution. Plaintiff obtained judgment. Defendant appeals.

Wm. J. Gaynor, for appellant.

E. H. Kissam, for respondent.

ANDREWS, J.

The right of the park commissioners of Brooklyn to terminate their contract of May 5, 1885, with the defendant at any time, and thereupon to disconnect the water-pipes of the defendant from the mains in Ocean Parkway, belonging to the city, and under the control of the commissioners, was by the contract dependent upon the failure or neglect of the defendant to furnish water according to his proposal, otherwise it could not be terminated, and the water could not be cut off, until six months after notice given by the commissioners of their election to terminate the agreement. On November 26, 1886, the commissioners caused a written notice to be served on the defendant that they had annulled the contract for the reason, as stated therein, that the defendant ‘has not performed the conditions of the contract,’ and the notice further advised the defendant that the commissioners were about to cut the connections, and notified him to protect his pipes and other property from any damage. It does not appear whether, in fact, the circumstances justified the commissioners in making an immediate disconnection, under the terms of the contract. The commissioners thereupon by a written order dated November 27, 1886, directed the plaintiff, who was in their employment, to disconnect the pipes. While he was engaged in executing the order, the defendant protested, and threatened to ‘jug’ him if he continued the work. He, however, completed it, and on the 1st of December, 1886, the defendant presented to a magistrate a verified complaint setting forth that the plaintiff and others, on the 1st day of December, 1886, ‘did commit a misdemeanor, to-wit, by malicionsly and willfully cutting the water-main, the property of the Kings County Water-Supply Company and Benjamin F. Stephens, in the town of Gravesend, Kings county, against the statute,’ etc. The magistrate thereupon issued a warrant for the arrest of the plaintiff, upon which he was arrested and brought before the magistrate, and the proceeding was finally terminated by his discharge on the 26th of March, 1887. This is the prosecution upon which the present action is based. It appears that the defendant, when he made the complaint, knew that the plaintiff, in disconnecting the pipes, was acting under the orders of his superior officers, the park commissioners; but the defendant did not disclose this fact in his complaint to the magistrate. When the plaintiff was brought before the magistrate, the proceedings were adjourned, and, as appears from the testimony on the part of the plaintiff, the defendant insisted that the plaintiff should be ‘locked up.’ There was evidence given tending to show that the work of disconnecting the pipes was done in a proper manner, and so as to cause no unnecessary injury to the defendant's pipes.

The court, on the trial, submitted to the jury the question of probable cause for instituting the prosecution before the magistrate, and also the question of malice. The jury found against the defendant on both questions, and it is now insisted that there was not only no evidence of the absence of probable cause, but that it affirmatively appeared upon the plaintiff's own showing that there was probable cause for the arrest. The Penal Code (section 639) provides that ‘any person who willfully or maliciously displaces, removes, injures, or destroys * * * (8) a pipe or main for conducting water or gas * * * is punishable by imprisonment for not more than two years.’ The complaint made by the defendant before the magistrate charged the plaintiff with an offense under this...