and 85 New York State Reporter. for which the plaintiff could recover was the defendant's default in not paying what was due on that day. This default is represented by the interest on the verdict, and that is all to which the plaintiff is entitled. It follows that interest accruing on the advance subsequently to July 27, 1893, should have been excluded from the claim, and the judgment must be modified accordingly. Upon the settlement of the order we will determine whether, upon the facts appearing in the record, the modification can properly be made. If not, the judgment must be reversed, and a new trial ordered. All concur. (28 App. Div. 457.) HAMILTON v. DAVEY. (Supreme Court, Appellate Division, Second Department. April 19, 1898.) 1. MALICIOUS PROSECUTION-EVIDENCE. In an action for malicious prosecution, four things must be shown, namely, the institution of the proceedings, a want of probable cause, malice, and the termination of the prosecution in favor of the plaintiff. 2. SAME DISMISSAL. Upon appeal from a judgment dismissing the complaint in an action for malicious prosecution, in which the evidence both as to probable cause and as to malice was conflicting, held, that both questions should have been submitted to the jury. Appeal from trial term, Orange county. Action by Fred Hamilton against Frank H. Davey. From a judg ment dismissing the complaint, plaintiff appeals. Reversed. Argued before GOODRICH, P. J., and BARTLETT, HATCH, and WOODWARD, JJ. A. H. F. Seeger, for appellant. GOODRICH, P. J. The complaint sets out a cause of action to recover damages for malicious prosecution. It also contains allegations which are usual in actions for false imprisonment, but the trial proceeded upon the theory that it was an action for malicious prosecution. It is well settled that four things must be shown in such an action: First, the institution of the proceedings; second, a want of probable cause; third, malice; fourth, the termination of the prosecution in favor of the plaintiff. The answer admits that the defendant entered a complaint before a justice of the peace, and that the justice issued a warrant, which was delivered to a constable, and that the plaintiff was arrested thereunder. It denies the other allegations of the complaint, and alleges that at various times between December 1, 1896, and January 26, 1897, there were feloniously stolen from him two dollars and upwards in money, and goods to the amount of two dollars and upwards in value, and that he had just cause to suspect the plaintiff to be guilty of such offense. It clearly appears by the evidence. that the prosecution has terminated in favor of the defendant. This left two questions open for consideration,-probable cause and malice. At the close of all the evidence the court dismissed the complaint, and from the judgment entered thereon, and the order denying a new trial, the plaintiff appeals. # The plaintiff contends that the affidavit upon which he was arrested was insufficient, in that it did not allege the facts constituting the offense so as to connect him therewith, but contained only the allegation that the defendant herein had "just cause to suspect and believe, and does suspect and believe, that Fred Hamilton stole the same, and the said Frank H. Davey suspects and believes that the said Fred Hamilton is guilty of said offense." Although this affidavit was probably insufficient to justify the issuing of the warrant, I do not consider the question essential upon this appeal, except as it bears upon the question of want of probable cause. It becomes necessary to state somewhat carefully the facts as shown by the evidence. The defendant, who was a farmer, employed the plaintiff as a laborer, and the plaintiff lived with him during the times mentioned in the affidavit. It was not until the last day of his employment, January 29th, that the defendant charged the plaintiff with theft. At this time the plaintiff asked for the balance of his wages, when the defendant accused him of having stolen $1 at one time, 70 cents at another, and 40 cents at another; also, a necktie, a collar, and a pair of rubbers. The defendant paid the plaintiff's wages to January 15th, deducting the money and the value of the articles; and the plaintiff left the house, but returned the next morning with his mother, when the de fendant paid him $3.50 more, and the plaintiff took his trunk away. There is testimony showing that a summons was served upon the defendant on the day the warrant was issued, and some hours previous thereto; but neither the name of the party plaintiff therein, nor the cause of action, appears in the record. As soon as this summons, whatever it was, had been served upon the defendant herein, he applied to the justice for a warrant for the arrest of the present plaintiff, and the warrant was issued, and given to a constable, who ar rested the plaintiff; and while he was taking him to the office of the justice, in his wagon, he stopped at the post office, where he received a letter from the defendant, saying, "Let Mr. Hamilton's racket rest at present." The constable proceeded with the plaintiff to defendant's house, and the defendant told him to let the prisoner go. This arrest was on the 11th of February. On the 17th the plaintiff ap peared before the justice, when the latter discharged him, there being no one present to prosecute him. The defendant, in order to show the eircumstances out of which his suspicions of the plaintiff arose, offered evidence that he began to miss money on December 27th, and again a week later, and again, and upon a later occasion, a still further sum of money from a pocketbook in the drawer of a bureau in his own bedroom. He searched the plaintiff's trunk, and found in it the necktie and the collar, and saw the overshoes lying by the trunk in his bedroom. After the first money was missed he placed fragments of paper and the pocketbook containing the money in a drawer, in such a way that the drawer could not be opened, or the pocketbook taken from its place, without changing the condition of the paper. He admits that he set these as traps for the plaintiff, and he testified: "I did it to get just what I got,-evidence so that I could prove that and 85 New York State Reporter. he stole these articles." The defendant, however, made no charge against the plaintiff, but continued him in his employment until January 29th. The plaintiff denied having stolen the money or the property. The evidence at the trial was of such a character as to raise a question of fact,-whether there was a want of probable cause, and whether the defendant was actuated by malice in obtaining a warrant against the plaintiff. It was held in the case of Besson v. Southard, 10 N. Y. 236, 240, that: "What is meant by the expression that probable cause is a mixed question of law and fact, and when it is proper to submit it to the jury to pass upon, is correctly explained in Masten v. Deyo, 2 Wend. 424. If the facts which are adduced as proof of a want of probable cause are controverted, if conflicting testimony is to be weighed, or if the credibility of witnesses is to be passed upon, the question of probable cause should go to the jury, with proper instructions as to the law. But, where there is no dispute about facts, it is the duty of the court, on the trial, to apply the law to them." In Heyne v. Blair, 62 N. Y. 19, 23, the court said: "It is pre-eminently a question for the judgment of twelve men to determine what, upon a doubtful state of facts, or upon facts from which different men would draw different conclusions,-that is, upon facts capable of different inferences, would be the belief and action of men of ordinary caution and prudence. Such is the rule in all questions of the like character, and there is no reason why this class of actions should form an exception to the rule. It is not the province of this court to pass upon the weight of evidence in the case before us, or determine whether, submitted to the jury with proper instructions, they should have found the want of probable cause." Under these authorities, we think that the existence of probable cause, and the absence of malice, were not so clearly shown, or so conclusively established, as to render it proper for the court to pass upon them as matter of law, and that the case was one where the evidence should have been passed upon by the jury. There was at least a conflict of evidence whether the plaintiff had stolen the money, whether the defendant was justified in entertaining suspicion of him, and whether the circumstances justified such suspicion; and all these questions had a bearing upon the want of probable cause. There was also evidence bearing upon the question of malice. The defendant, after becoming suspicious of the plaintiff, retained him in his service for several weeks; meanwhile setting traps, as he admits, for the purpose of securing evidence of a theft to be thereafter committed, and for which he afforded opportunity to the plaintiff. He did not attempt to secure a warrant for the plaintiff's arrest until the service of a summons of some kind upon him. And these circumstances were so closely connected with the question of malice as to require a submission to the jury of the question as to the defendant's malice in procuring the plaintiff's arrest. We think that the dismissal of the complaint was error, for which the judgment and order should be reversed. All concur. (22 Misc. Rep. 661.) ROSSMAN et al. v. SEAVER et al. (Supreme Court, Special Term, New York County. February, 1898.) 1. CORPORATIONS-INSOLVENCY-PREFERENCES-JUDGMENTS. Under Laws 1892, c. 688, § 48, prohibiting the suffering of a judgment by an insolvent corporation with preferential intent, judgments obtained against an insolvent corporation by the aid of its president by splitting up a large note into smaller ones, so that judgments might be obtained upon them in another court on shorter notice, and keeping the service of summons secret, and the holding off of proceedings for the appointment of a receiver, are illegal, irrespective of whether at a later period the creditor could have obtained his judgments. 2. RECEIVERS-SALE-PRIORITY OF LIENS. An order for the sale of property of an insolvent corporation in the hands of a receiver does not validate judgments and executions against property, which, except for its making, would be invalid. Action by Robert Rossman and others against Lewis M. Seaver and others to set aside judgments and executions obtained against a corporation. Judgment for plaintiffs. Charles E. Rushmore, for plaintiffs. RUSSELL, J. The proof makes the presumption clear that Charles E. Ensign, the president of the insolvent corporation, Kirtland, Andrews & Co., favored the preference of the indebtedness against the company held by his cousin, Herman L. Ensign, to the amount of $6,200, and interest. This president took some action towards the transfer of securities, but abandoned the effort on account of its probable invalidity. He caused the note of $5,000 to be split up into smaller ones, so that they and the $1,200 note might be sued in the city court of New York, being thus brought within its jurisdiction. He kept secret the service of the summons, so far as he was able, and so leisurely made preparations for insolvent proceedings against the company that judgments were obtained and levies made before this court obtained jurisdiction of proceedings instituted for the equal benefit of all creditors. He thus had the reasonable right to infer that the creditor, assisted by his own action, would take such effective means as lay within his power to secure a preference by legal proceedings. Among those effective means adopted by the creditor was the transfer of the notes to a business associate in the state of New Jersey for the purpose of procuring two days' summonses in the city court, and thus avoiding all the delay possible. The consenting action of the president of the company, therefore, lay in the direction of conveniently splitting up the securities so that the creditor might, if he chose, obtain a speedier judgment than otherwise, by keeping silent as to the service of the summonses, and refraining from putting the company into the hands of a receiver until after the judgments were obtained. As a matter of course, the creditor holding the original paper, which was overdue, had the right to proceed in the supreme court, and obtain a judgment in 21 days, for there was no defense to the claim; and it would have been a misuse of legal proceedings to have interposed any answer, or to have obtained delay by extension. and 85 New York State Reporter. of time to answer on the plea of a defense which did not exist. It must always be remembered, in passing upon the statute (Laws 1892, c. 688, § 48) which forbids transfers or judgments in view of insolvency by a corporation, that there is a wide difference between the transfers referred to in that section and the suffering of a judgment. No creditor can compel a transfer by way of preferential security or lien. He can compel the rendition of a judgment upon a claim which is without defense. The security or lien cannot be received by the creditor without the action of the debtor. The judgment can be ob tained without it. Where an offer of judgment is made, or one confessed, the intent to prefer, as well as the sufferance of the judgment. are manifest; and a conclusion not entirely superficial might be drawn that the activity on the part of the president of the corporation, which hastened the period within which the creditor could get judgment. might, for the purpose of preferential intent, be equivalent in substantial effect to an offer of judgment itself, unless grave authority to which we must defer has decided otherwise. In French v. Andrews, 145 N. Y. 441, 40 N. E. 214, the court of appeals held that the splitting up of a claim of $10,096.19, a part of which was not due, into 11 notes, so that actions might be begun in the municipal court of Rochester, and judgments be obtained by default in six days, was not a violation of the section, as adopted in 1890, which referred only to transfers or assignments, and did not inhibit the sufferance of a judg ment. That case also reiterated the doctrine of Varnum v. Hart, 119 N. Y. 101, 23 N. E. 183, which held that silence, after the service of the summons, was not, in effect, a preferential assignment or transfer by the officers. This case is relied upon by the counsel for the defendants as conclusive; but it is easy to see that, within the terms of the law as it then existed, the obtaining of a judgment was not, and could not have been, an offense against a statute which prohibited an assignment or transfer. And Judge Peckham, in his opinion, notes the change by the amendment of 1892, with a suggestion which seems to carry the inference that if the statute then under contemplation had prohibited the suffering of a judgment, the decision of the court of appeals would have been different. It is very certain that the preference obtained by the judgment creditor through his execution liens would not have been obtained as early as it was without the active aid of the president of the insolvent corporation. He helped on a speedy recovery with the intent of preference, and held off proceedings which would have brought equal division without preference. If this is not suffering judgments with preferential intent, irrespective of the question as to whether at a later period the creditor could have obtained his judgments or not, the statute is meaningless, and entirely ineffective. Olney v. Baird, 7 App. Div. 95, 40 N. Y. Supp. 202. The case of Ridgway v. Symons, 4 App. Div. 98, 38 N. Y. Supp. 895, is not authority for the defense that the plaintiffs are bound by the order directing the receiver to sell and convert the property into cash, which would be subject to the liens of the executions. In that case the executions were released upon the condition that the receiver should sell and pay those executions, and such an order was made upon a motion in which all parties interested were represented. Here the |