Weisner v. Hansen

• Citation: 80 A. 455,81 N.J.L. 601
• Parties: WEISNER v. HANSEN.
• Decision Date: 22 June 1911
• Court: United States State Supreme Court (New Jersey)

80 A. 455

81 N.J.L. 601

WEISNER

v. HANSEN.

Court of Errors and Appeals of New Jersey.

June 22, 1911.

Error to Supreme Court.

Action by Jacob Weisner against Christian Hansen for malicious prosecution. From a judgment of the Supreme Court, affirming judgment for plaintiff, defendant brings error. Affirmed.

Samuel Koestler, for plaintiff in error.

Alfred A. Stein, for defendant in error.

GUMMERE, C. J. The writ of error in this case brings up a judgment of the Supreme Court affirming a judgment of the Elizabeth district court, in an action brought by the defendant in error against the plaintiff in error for malicious prosecution. The case was tried by the court without a jury, and resulted in favor of the plaintiff below. At the trial of the case, the defendant below moved for a nonsuit at the close of the plaintiff's case. This motion was refused. When the case was closed on both sides, he requested a finding by the court, as a matter of law, that, upon the undisputed facts, want of probable cause for the institution of the original proceeding did not appear, or any malice on the part of the defendant in bringing it. This request was also refused.

The principal contention of the plaintiff in error in the Supreme Court was that, both in the refusal to nonsuit and in the refusal to find as requested, there was injurious error, and the holding of the Supreme Court to the contrary is the main ground upon which he now seeks to reverse the judgment before us.

The proofs submitted at the trial on the part of the plaintiff showed that he had been arrested upon a charge made by the defendant that he (the plaintiff), while in possession of the defendant's house as tenant, willfully and maliciously defaced the walls thereof, partially destroyed certain gas fixtures therein, and removed a kitchen mantel from its place against the wall; that he (the plaintiff) was bound over for appearance before the grand jury upon that charge; and that the charge was subsequently, and before the commencement of this suit, ignored by that body. The plaintiff's proofs further showed that he surrendered possession of defendant's property a day or two before his arrest; that when he did so the walls were not defaced, and the gas fixtures and the kitchen mantel were in the same condition as they were when his tenancy began. They further show that he knew nothing of the alleged injury to the premises until his arrest, and was not connected therewith in any way.

By refusing the motion to nonsuit, the trial judge, by necessary inference, held, as matter of law, upon the proofs submitted, that the criminal prosecution against the plaintiff was ended by the ignoramus of the grand jury; that it was instituted by the defendant without reasonable or probable cause; and that the defendant was actuated by a malicious motive in making the charge; for all of these elements were required to be present in order to support the plaintiff's action. Apgar v. Woolston, 43 N. J. Law, 57; O'Brien v. Frasier, 47 N. J. Law, 349, 1 Atl. 465, 54 Am. Rep. 170; Magowan v. Rickey, 64 N. J. Law, 402, 45 Atl. 804.

That the...