Heyne v. . Blair
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, in favor of defendant, entered upon an order denying a motion for a new trial and directing judgment upon a verdict. (Reported below, 3 K Y. S. C. [T. & 0.], 263.) This action was for malicious prosecution. In 1872 defendant discounted for plaintiff two promissory notes each for $300, indorsed by H. Ackerman.
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Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, in favor of defendant, entered upon an order denying a motion for a new trial and directing judgment upon a verdict. (Reported below, 3 K Y. S. C. [T. & 0.], 263.) This action was for malicious prosecution. In 1872 defendant discounted for plaintiff two promissory notes each for $300, indorsed by H. Ackerman. Ackerman, to defendant’s knowledge, had frequently indorsed for plaintiff and defendant had discounted a number of such notes. In January, 1873, defendant made a complaint against plaintiff…
1Per curiam
The counsel for the defendant is entirely right in his position that the onus was upon the plaintiff to prove both the want of probable cause for the prosecution instituted against him, and malice on the part of the defend ant. If he failed to prove either of these facts, the action necessarily failed. (Besson v. Southard, 6 Seld., 236; Foshay v. Ferguson, 2 Denio, 617.) Proof of malice will not excuse or supply the want of proof of want of probable cause, neither can the want of probable cause be inferred from proof of malice, although malice may be inferred from the want of probable cause.…
2Cases cited3 opinions
- Carl v. . AyersNew York Court of Appeals · 1873
- Foshay v. FergusonNew York Supreme Court · 1846
- Masten v. DeyoNew York Supreme Court · 1829
3Cited by63 opinions
- Burt v. . SmithNew York Court of Appeals · 1905
- Martin v. City of AlbanyNew York Court of Appeals · 1977
- Schultz v. . Greenwood CemeteryNew York Court of Appeals · 1907
- Hamilton v. SmithMichigan Supreme Court · 1878
- Ramsey v. ArrottTexas Supreme Court · 1885
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