App. Div.] First Department, January, 1921. ALEXANDER P. MACAULEY, Respondent, v. THEODORE B. STARR, INC., Appellant. First Department, January 14, 1921. Malicious prosecution — plaintiff indicted for larceny on evidence furnished in part by defendant's agents indictment dismissed defendant not connected with instigation or continuance of malicious prosecution complaint dismissed - excessive verdict - punitive damages not authorized. In an action for malicious prosecution wherein the plaintiff had a verdict for $100,000 it appeared that on the 23d day of December, 1916, a customer came into the store of the defendant in New York city and made purchases fo: which he paid in part with forged travelers' checks on a Canadian bank; that the same purchaser passed similar forged checks to other firms in the city of New York about the same time; that defendant's floor manager made complaint to the police department of the city of New York, which, after an investigation, reported the matter to the district attorney's office; that before indictment the plaintiff was arrested in St. Louis charged with passing similar forged checks on the same bank; that an agent of the defendant was sent to St. Louis by the district attorney, at his expense and over the protest of the defendant, to identify the plaintiff; that the plaintiff was extradited from Missouri and brought back to New York city where he pleaded not guilty and was admitted to bail; that thereafter on the testimony of the defendant's agents a superseding indictment was found and on the application of plaintiff herein a commission was allowed to take evidence in his behalf; that as a result of the evidence taken on said commission the district attorney became convinced that a mistake had been made and procured the dismissal of the indictment, though he did so against the objection of one of the defendant's agents. Held, on all the evidence, that the defendant was not connected with the instigation or continuance of any malicious prosecution and that the complaint should be dismissed. If the defendant alone were responsible for the injury to the plaintiff's reputation and for the damage caused by his false or mistaken arrest, the verdict might not be said to be excessive, but in view of the fact that the defendant is only in part responsible for the injury, and as the plaintiff was first arrested for the 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 presented there was no justification for the charge of the court authorizing the jury to assess upon the defendant punitive damages, First Department, January, 1921. [Vol. 194. for a corporation is not liable for exemplary damages unless the act of its agent was explicitly authorized or afterwards ratified, or there was negligence in the hiring of an improper servant, and the evidence does not establish the existence of any of these conditions. The fact that the defendant permitted its servant to go to St. Louis to make the identification of the plaintiff in the criminal proceeding, after protesting, and at the expense of the district attorney, was not the instigation or the continuance of a prosecution by the defendant. Furthermore, at the time that the defendant's agent was sent to St. Louis, there existed as a matter of law probable cause for the prosecution of the plaintiff herein, so that any act of the defendant, even though it had acted voluntarily in sending its servant to St. Louis, would then have been justified as matter of law as supported by probable cause for belief that the plaintiff was the party guilty of the frauds in New York city. The fact that the defendant's agents were witnesses before the grand jury which handed down the superseding indictment is not such a participation by the defendant in the prosecution as would subject it to liability. The identification by the defendant's agents of the plaintiff herein as the one who committed the crime does not, on the facts of the case, establish bad faith on the part of the defendant. Any protest made by the agent of the defendant against the dismissal of the superseding indictment was not the protest of the defendant but was the protest of the agent individually, and, furthermore, the protest was not effectual in any way to cause further prosecution because the indictment was dismissed and, therefore, no damage could have resulted from that protest. DOWLING and PAGE, JJ., dissent. APPEAL by the defendant, Theodore B. Starr, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of January, 1920, upon the verdict of a jury for $100,000, and also from an order entered in said clerk's office on the same day denying defendant's motion to set aside the verdict and for a new trial made upon the minutes. Martin W. Littleton of counsel [William A. Moore and Theodore H. Lord with him on the brief; Swan, Moore & Danforth, attorneys], for the appellant. Terence J. McManus of counsel [William M. K. Olcott and Nathan Ballin with him on the brief; Olcott, Bonynge, McManus & Ernst, attorneys], for the respondent. App. Div.] First Department, January, 1921. The action is brought for damages for malicious prosecution. Upon the 23d day of December, 1916, a customer came into the jewelry store of Theodore B. Starr, Inc., and purchased some sleeve buttons. The price of these sleeve buttons was $550. The customer paid therefor $150 in cash and $400 in two travelers' checks on the Canadian Bank of Commerce. These checks were made out to G. H. Meighen and were indorsed in that name. These checks proved to be forgeries. Upon the discovery of the forgery Mr. Hill, an employee of the defendant, and conceded to be the floor manager, and spoken of in one or two places in the evidence as the manager of the defendant, reported the matter to the police department. Thereafter Officer Curley, a detective attached to the police department was detailed to investigate the crime. He came to the defendant's store and interviewed the employees who had knowledge of the facts and thereafter reported the same to the district attorney's office. It seems that this same purchaser passed similar forged travelers' checks upon the Canadian Bank of Commerce to five other firms in the city of New York, which matter was, at the same time, brought to the attention of the district attorney. The district attorney directed the detective to produce the witnesses from these It was called to the different stores before the grand jury. attention of these witnesses that a criminal by the name of Christmas Keough had been guilty of similar crimes theretofore and his photograph was obtained from the police department. This photograph, however, was said to have been taken eighteen or twenty years before. The witnesses were. of opinion that this photograph, considering the difference in age, "bore a resemblance" to the man who had practiced the fraud, and they so swore before the grand jury. A clerk by the name of Herman Muller was the clerk who sold these sleeve buttons for Theodore B. Starr, Inc., and his evidence was taken before the grand jury, as was also the evidence of Hill, the floor manager, and also the evidence of one Oppenheim, who was a special detective employed by Theodore B. Starr, Inc., at this time. Before the indictment was handed down report came to New York that some man had in St. Louis upon the thirtieth day of December, one week later First Department, January, 1921. [Vol. 194. than the time these forged checks were passed in New York, passed forged checks upon the same bank which were in all respects similar except as to the name of the payee and that he had been arrested in St. Louis upon the 3d day of January, 1917. The man arrested in St. Louis was this plaintiff, A. P. Macauley, and he was identified by six witnesses in St. Louis as the man who had passed the checks in one place and attempted to pass them in another in St. Louis. His photograph was afterwards sent to New York, and eight witnesses from these different stores were of opinion that this photograph was the photograph of the man who committed the frauds in New York city. A bench warrant was issued for the arrest of Christmas Keough, alias G. H. Meighen, also alias A. P. Macauley. Extradition was sought and the district attorney sent Officer Curley to St. Louis in pursuance of the extradition papers signed by the Governor in order to bring Macauley back to the State of New York. When Officer Curley arrived in St. Louis he consulted with an officer called the circuit attorney, the criminal prosecutor in that State, and it was found necessary to have someone in St. Louis to identify this A. P. Macauley. The district attorney made application, therefore, to Theodore B. Starr, Inc., to send Herman Muller to St. Louis for this purpose. It appears uncontradicted that Theodore B. Starr, Inc., was, at first, unwilling to let him go for this purpose, but afterwards, upon persuasion of the district attorney, permission was given that he should go and he did go to St. Louis at the expense of the district attorney and there identified Macauley as the man who had committed the fraud upon Theodore B. Starr, Inc., in the city of New York. Proof was offered at the hearing before the Governor of Missouri that Macauley arrived in St. Louis upon the twenty-third day of December, and the hotel register of the Hamilton Hotel of St. Louis was presented which apparently had his signature as a registered guest upon that date, and a large number of witnesses were sworn in behalf of Macauley, all of whom swore that Macauley was in St. Louis either the night of the twenty-third or the morning of the twentyfourth day of December. Nevertheless, upon the identification of Muller, extradition was allowed and the plaintiff was brought to New York and was arraigned and pleaded not guilty and was admitted to bail. Thereafter, and upon App Div.] First Department, January, 1921. April 5, 1917, a superseding indictment was found upon the testimony of Muller and Hill, charging Macauley with this crime. In the month of June a commission was allowed to take evidence in behalf of Macauley in Toronto, where Macauley lived, in Detroit, in Chicago and in St. Louis. An assistant district attorney named Kilroe attended upon that commission in behalf of the People and Macauley and his attorney were also present. A large number of witnesses were sworn in these different cities. After the return to New York city Kilroe called together these witnesses who had identified Macauley and stated that he was satisfied that a mistake had been made and that Macauley could not have been in New York on December twenty-third and announced that he was compelled to ask that the indictment be dismissed. All of these witnesses, however, notwithstanding this report, still identified Macauley as the man who committed the crime in the city of New York except three representing Lord & Taylor and one other firm upon whom the fraud had been committed, who swore that "they were not sure." The evidence is to the effect that Muller then protested against the dismissal of the indictment and stated that they ought to have a jury trial, that a jury might convict him, notwithstanding the evidence given upon these depositions, but his persistence was without avail and the district attorney recommended the dismissal of the indictment which was granted in October, 1917. The indictments against the plaintiff in St. Louis were afterwards dismissed. It does not appear for what reason. He was not tried. He was confessedly in St. Louis at the time the fraud was committed upon the firms in St. Louis, and upon a subsequent trial between one of the St. Louis firms which had been defrauded and this plaintiff, six witnesses still identified Macauley as the man who had been guilty of the frauds in St. Louis. Thereafter this plaintiff commenced actions for malicious prosecution, both in St. Louis and in New York city. One of the actions has been tried in St. Louis, but with what result does not appear. This action was tried in New York, resulting in a verdict of $100,000 against the defendant, and |