First Department, January, 1921. [Vol. 194. from this judgment and the order denying a motion for a new trial made therein this appeal has been taken. He had been for It must be assumed upon this appeal that the plaintiff was innocent of the crimes with which he has been charged. That they were serious crimes is not controverted. He has been to large expense both in the employment of counsel, and upon the commission upon which testimony was taken on his behalf, which was only granted upon his payment of all the expenses of the commission, and he is shown to have expended upwards of $12,000 in order to clear himself from these charges. The damage to his reputation was great. He was practically thrown out of business for about a year. many years an agent for the sale of liquor, and he was afterwards interested in the sale of mining claims, and he swears that his income for two years prior to 1917 was in the neighborhood of $60,000 each year. If the defendant were alone responsible for the injury to his reputation and for the damage caused by his false or mistaken arrest, it is probable that the verdict could not be said to be excessive, but in view of the fact that the defendant is only in part responsible for this injury, and as the plaintiff was first arrested for these crimes in St. Louis and afterwards for committing fraud on five different firms in New York city, it cannot be said that the acts of the defendant could have been the cause of all the damage suffered. Upon the evidence in this case we find no justification for the charge of the court authorizing the jury to assess upon the defendant punitive damages. The trial court charged that if the defendant was liable the jury might include punitive damages in its verdict, and to this an exception was taken. The rule of law in this State is now settled that a corporation is not liable for exemplary damages unless the act of the agent was explicitly authorized or afterwards ratified, or there was negligence in the hiring of an improper servant. (See 1 Sedgw. Dam. [8th ed.] § 380; Pollack v. Staten Island Rapid Transit R. Co., 187 App. Div. 832; Craven v. Bloomingdale, 171 N. Y. 439, 450; Kastner v. Long Island R. R. Co., 76 App. Div. 323.) There was clearly no direct authorization to make this identification of the plaintiff as the man who committed the fraud. There was no ratification of the identification App. Div.] First Department, January, 1921. made, first, because there is no evidence that the defendant had knowledge of the circumstances under which the plaintiff was identified and the only ratification that can be claimed would be upon any presumed knowledge of Hill who is not shown to have been connected with the corporation with any authority to ratify such an act. Further, there is no evidence whatever that either Muller or Hill was negligently hired or was incompetent or unqualified to perform the duties for which he was employed. This ruling would in any event require a new trial of this action. In the view I take, however, of the defendant's responsibility for the prosecution of the plaintiff, it may not be necessary to pass upon these questions which would only affect the right of the defendant to have the matter again submitted to another jury upon a new trial. The plaintiff's difficulty, as I conceive, lies deeper, in the failure to connect the defendant with the instigation or continuance of any malicious prosecution. That a crime was committed and that these forged checks were passed by someone stands conceded. At the time the matter was reported to the police authorities the plaintiff's name was not mentioned and was not known. The matter was turned over to the district attorney who took the matter in charge and issued a bench warrant upon the thirtieth day of December for Christmas Keough, alias G. H. Meighen. The prosecution did not become a prosecution against this plaintiff until after receiving information that plaintiff had been arrested and identified in St. Louis for passing travelers' checks upon this same bank of precisely similar description, except as to the name of the payee, whereupon, the plaintiff's name was inserted in the indictment as another alias for Christmas Keough. The district attorney swears that he directed that the defendant's clerk Muller be sent to St. Louis to identify the criminal. This was demurred to by the defendant who only acceded to the request or direction of the district attorney after protest. It is probably true that Muller could not have been compelled to go to St. Louis to make the identification; nevertheless, it is a civic duty of any one who has knowledge that a crime has been committed to give such authorities such assistance as may be asked for to find and punish the First Department, January, 1921. [Vol. 194. criminal. The fact of allowing Muller to go to St. Louis to make this identification, after protest, was not, in my judgment, the instigation or the continuance of a prosecution by the defendant. The criminal authorities of the city had at that time taken the matter in charge, and with a presumption that those authorities would act within the law and upon reasonable cause this defendant cannot be held liable for any act of those criminal authorities which was not instigated, aided or abetted by the defendant. When Muller was sent to St. Louis he went there, not as an agent of the defendant, but as a witness simply, called by the district attorney to perform a civic duty, and the defendant, as I view the law, is no more liable for the act of Muller in identifying this plaintiff as the criminal than would be any master whose servant was called upon to testify in a criminal proceeding. Muller went to St. Louis, not at the expense of the defendant, but at the expense of the district attorney, and the fact that Muller's salary may have been paid meantime by the defendant constitutes in no sense a contribution by the defendant which would make the defendant a party to the instigation or continuance of the plaintiff's prosecution. But assume for the argument that the defendant's consent to allow Muller to go to St. Louis was such an act of the defendant as constituted a contribution or co-operation in the prosecution. It will be borne in mind that at that time there existed as matter of law probable cause for the prosecution of this plaintiff. These fraudulent checks had been passed in New York upon the twenty-third of December. One week later forged checks upon this same Canadian bank precisely similar to those which had been passed in New York were passed in St. Louis. The inference is irresistible that they were passed in St. Louis by the same man or, at least, by a confederate. With the identification of this plaintiff in St. Louis as the man who passed the forged checks there, the inference was at that time, and with the knowledge that the defendant then had, well nigh irresistible that the plaintiff was the man who passed. the forged checks in New York city, so that any act of the defendant, even if the defendant had volunteered to send Muller to St. Louis, and had paid his expenses, would then have been justified as matter of law as supported by probable App. Div.] First Department, January, 1921. cause for belief that the plaintiff was the party guilty of the frauds in New York city. It was only after the evidence was produced in St. Louis of the hotel register, and of the witnesses showing that the plaintiff was in St. Louis upon the twenty-third day of December, that any question could arise which would make the question of probable cause a question for the jury. It will be borne in mind also that notwithstanding the evidence produced in St. Louis, the district attorney of New York county was not convinced that the plaintiff was not the guilty party, but procured a superseding indictment upon the fifth day of April. It is true that Muller and Hill were witnesses in procuring that superseding indictment. But the mere fact that they swore as witnesses before the grand jury was not such a participation by the defendant in the prosecution as would subject the defendant to liability. This superseding indictment was not procured either by the direction, request or suggestion of the defendant, but purely at the instance of the criminal authorities of New York city. The defendant would not have been permitted to prohibit Muller and Hill from testifying for the purpose of procuring this superseding indictment. Such an act on the part of the defendant would be punishable as a crime under section 813 of the Penal Law. The defendant could not have then withdrawn the prosecution. Within a month we have upheld a conviction for larceny where the complaining witness sought to withdraw the prosecution and was forbidden by the magistrate before whom the prosecution was pending. (People v. Rassel, 194 App. Div. 966.) I venture that no case can be found in any court which would hold a party liable for malicious prosecution where the only participation in such prosecution was the giving of testimony by an employee of the party. There is no principle of law which would hold a party liable for the act of his servant, which was not actually advised or instigated by the party and which the party had no power to prevent. The liability of a master has never been carried to that extent for the act of a servant, and cannot be, within well-recognized principles under which the doctrine of respondeat superior has been applied. It is claimed, however, that the act of Muller in first identifying the photograph of Christmas Keough, and after First Department, January, 1921. [Vol. 194. wards identifying the photograph of the plaintiff as the man who committed the fraud is an indication of bad faith on his part which should be charged to the defendant. Passing for a moment the question of the liability of the defendant for any act of Muller or Hill, not directed by the defendant, after the prosecution had passed into the hands of the district attorney, the facts of the case do not warrant the inference sought to be drawn by the plaintiff. This photograph of Christmas Keough was confessedly a photograph taken eighteen or twenty years before. But experience demonstrates that eighteen or twenty years in the life of a man causes marked changes in appearance, and when this photograph of Christmas Keough was presented to these witnesses they swore that there was "a resemblance" to the man who committed the fraud. Moreover, in the evidence of the plaintiff it appears that after the plaintiff had been charged with this crime he met in a hotel in Toronto a man by the name of Schadel. The plaintiff himself says that this man at first sight might have been taken for himself. They evidently discussed their resemblance and both of them went to another part of the hotel and were weighed, and while the plaintiff weighed 217 pounds, this man weighed 212 pounds. But this very man who the plaintiff swears might at first glance be taken for himself, the plaintiff himself suspected was the man Christmas Keough. He had taken pains to ascertain the facts in reference to Christmas Keough and his appearance, and he had learned that Christmas Keough had a mole on the back of his neck, and he undoubtedly saw the picture of Christmas Keough which was identified by these witnesses, including Muller. With these facts in mind, the plaintiff himself suspected that this man was Christmas Keough, and he had the clerk of the hotel go behind him to discover whether this man had a mole on the back of his neck. The fact that the plaintiff himself suspected that the man who he said had a slight resemblance to him upon first glance was, in fact, Christmas Keough clearly indicates that there was something in the features, as shown by the picture of Christmas Keough, taken twenty years before, which might induce these New York witnesses to believe, before the plaintiff had been discovered, that Christmas Keough was in fact the man who |