Chernow v. Feldman

Action to recover damages for the malicious prosecution by appellant of a criminal charge against the plaintiff. Judgment for the plaintiff affirmed, with costs. No opinion. Carswell, Acting P. J., Nolan and Sneed, JJ., concur; Adel, J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: The appellant testified at the trial in the County Court, Kings County, under subpoena, and at no other proceeding in the criminal prosecution. If it be assumed that there is evidence to sustain the finding that the appellant instigated the criminal prosecution, the record is barren of proof to sustain a finding of want of probable cause. The holding by the magistrate and the indictment by the grand jury established probable cause prima facie. The statements about the appellant which appeared in the publication are libelous. There is no proof that such statements are true, thereby indicating want of probable cause for the prosecution which led to the holding by the magistrate and indictment by the grand jury.