Fagnan v. . Knox
New York Court of Appeals
Appeal from judgment of the General Term of the Superior Court of the city of Hew York affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 8 J. & S, 41.) The nature of the action and the facts are sufficiently set forth in the opinion. To sustain this action it was necessary for plaintiff to establish affirmatively that the prosecution was instituted both maliciously and without probable cause.
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Appeal from judgment of the General Term of the Superior Court of the city of Hew York affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 8 J. & S, 41.) The nature of the action and the facts are sufficiently set forth in the opinion. To sustain this action it was necessary for plaintiff to establish affirmatively that the prosecution was instituted both maliciously and without probable cause. (2 Greenl. on Ev. [10th ed.], 403, § 453; 1 Hil. on Torts, 416, 430; Miller v. Milligan, 48 Barb., 36; 1 Am. L. Cas. [5th ed.], 262, 263, note; Johnstone v. Button, 1…
1Opinion of the Court
Chuboh, Ch. J.
This action is for malicious prosecution of the plaintiff for embezzlement. In such an action it is incumbent on the plaintiff to prove that the prosecution was instituted without probable cause, and maliciously. The question of probable • cause is a question of law and not of fact.' It is sometimes said to be a mixed question of law and fact. This only means that when the facts adduced to jrrove a want of probable cause are controverted, or conflicting evidence is to be weighed, or the credibility of witnesses is to be passed upon, it must be submitted to the jury to find the…
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- People v. OdenNew York Court of Appeals · 1975
- Dean v. . KochendorferNew York Court of Appeals · 1924
- Ball v. RawlesCalifornia Supreme Court · 1892
- Wass v. . StephensNew York Court of Appeals · 1891
- Hamilton v. SmithMichigan Supreme Court · 1878
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