Van De Wiele v. Callanan
New York Court of Common Pleas
Appeal by the defendant from an order granting a motion for a new trial on the minutes, and setting aside a dismissal of the complaint, ordered at the trial of the cause before Judge Joseph F. Daly, and a jury.
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Appeal by the defendant from an order granting a motion for a new trial on the minutes, and setting aside a dismissal of the complaint, ordered at the trial of the cause before Judge Joseph F. Daly, and a jury. The action was brought for the recovery of $5,000 damages for an alleged malicious prosecution by the defendant in causing the plaintiff’s arrest on a complaint made before Charles A. Flammer, police justice in New York City, charging him with the crime of perjury in falsely swearing to an affidavit of justification in the sum of $2,000, as surety in an undertaking executed by him, on…
1Opinion of the Court
Charles P. Daly, Chief Justice.
The complaint was, in my opinion, defective. The averment of without just or proper cause, was not equivalent to an averment of want of probable cause, for it does not necessarily express the same thing, and could not be substituted for it. But the objection is not available now. It should have been raised either by demurrer or by a motion, at the trial, to dismiss the complaint, as not containing an averment of a sufficient cause of action. (Fay v. O'Neill, 36 N. Y. 11.)
If it had appeared that, after the examination of the charge against the plaintiff, the -…
2Cases cited3 opinions
- Fay v. . O'NeillNew York Court of Appeals · 1867
- Jackson v. FassittNew York Supreme Court · 1861
- Lusk v. SmithNew York Supreme Court · 1850
3Cited by2 opinions
- Bregman v. KressAppellate Division of the Supreme Court of the State of New York · 1903
- Palmer v. PalmerAppellate Division of the Supreme Court of the State of New York · 1896