Halberstadt v. New York Life Insurance Co. Court of Appeals, New York, January 5, 1909. Reported in 194 New York Reports, 1

Chapter V. Malicious Prosecution and Abuse of Process

The action is brought to recover damages for an alleged malicious prosecution claimed to have been instituted by the respondent against the appellant in Mexico. It is in the complaint, amongst other things, alleged that the respondent through its agent in the Criminal Court of the city of Mexico charged the appellant with the crime of embezzlement “and thereupon and in and by virtue of said charge and the institution of said criminal proceedings a warrant was issued by said court for the arrest of the plaintiff (in this action),” and that thereafter “the said criminal proceedings for the punishment of said plaintiff were dismissed and extinguished and the said prosecution was thereby wholly determined ... in favor of the plaintiff.”

The respondent, by its second defence, which is challenged here for insufficiency, alleged, in substance, that before the warrant referred to in the complaint could be served upon the appellant and before he could be apprehended, “he left the Republic of Mexico and thereafter continuously remained absent ... and by such absence avoided being arrested under such warrant, or being tried ... but remained absent from said Republic of Mexico for a sufficient period of time to enable him to procure the dismissal of said proceedings under the law of Mexico on account solely of the lapse of time,” and, conversely, that said criminal proceedings “were not dismissed on account of a determination of the case in favor of the plaintiff on the trial thereof on the merits, nor was it dismissed for failure to prosecute said case except as above set forth, nor was it dismissed on account of any withdrawal of the complaint.”

The plaintiff demurred to this defence and also to the third defence which was not materially different from the second. The demurrer was sustained at Special Term. This judgment was reversed by the General Term, and the plaintiff now appeals.

Hiscock, J. The respondent’s first reply to the appellant’s attack upon its answer is of the tu quoque nature, it insisting that the complaint is as deficient in the statement of a good cause of action as the answer is alleged to be in the statement of a good defence. This contention is based upon the fact that the complaint does not allege any act subsequent or in addition to the mere issuance of a warrant in the criminal proceeding complained of; does not allege that the warrant was ever executed in any way whatever, or that the appellant was ever actually brought into said proceedings either by force of process or voluntary appearance. Therefore, the question is presented whether the mere application for and issuance to a proper officer for execution of a warrant on a criminal charge may institute and constitute such a prosecution as may be made the basis of a subsequent civil action by the party claimed to have been injured. In considering this question we must keep in mind that the facts alleged in the complaint, and in the light of which it is to be determined, do not show, as the answer does, that the defendant in those proceedings was beyond the jurisdiction of the court.

This question does not seem to have been settled by any decision which we regard as controlling on us.

The respondent cites the following authorities deciding it in the negative: Newfield v. Copperman, 15 Abb. Pr., N. S., 360; Lawyer v. Loomis, 3 T. & C. 393; Cooper v. Armour, 42 Fed. 215; Heyward v. Cuthbert, 4 McCord, 354; O’Driscoll v. M’Burney, 2 Nott & McCord, 54; Bartlett v. Cristliff, 14 Atl. R. 518; Gregory v. Derby, 8 C. & P. 749; Paul v. Fargo, 84 App. Div. 9.

The case last cited was concerned with an alleged malicious prosecution by means of civil process and what was there said must be interpreted with reference to that fact, and thus interpreted it is not applicable here. Of the other cases, only two, Heyward v. Cuthbert and Cooper v. Armour, considered the question here involved with sufficient thoroughness to require brief comment. An examination will show that the decision in each of them rested in whole or part on a principle not, as I believe, adopted in this state. In the former it was said that “The foundation of this sort of action is the wrong done to the plaintiff by the direct detention or imprisonment of his person.” As I think we shall see hereafter, that is not a correct statement of the law in this state. In the other case it was stated, “The only injury sustained by the person accused, when he is not taken into custody, and no process has been issued against him, is to his reputation; and for such an injury the action of libel or slander is the appropriate remedy, and would seem to be the only remedy.” I think that this doctrine, which if correct would provide an adequate remedy outside of an action for malicious prosecution for an injured party in a case where no warrant had been executed, also is opposed to the weight of authority both in this state and elsewhere hereafter to be referred to.

The authorities holding to the contrary on the question above stated, and that the execution of the warrant is not necessary to lay the foundation for an action of malicious prosecution, are: Addison on Torts, vol. 2 [4th Eng. ed.], p. 478; Newell on Malicious Prosecution, sect. 30; Stephens on Malicious Prosecution, Am. ed., sect. 8; Stapp v. Partlow, Dudley’s Repts., (Ga.) 176; Clarke v. Postan, 6 C. & P. 423; Fezale v. Simpson, 2 Ill. 30; Britton v. Granger, 13 Ohio Cir. Ct. Repts. 281, 291; Holmes v. Johnson, Busbee’s L. R. 44; Coffey v. Myers, 84 Ind. 105.

And to the like effect in the absence of special statutory provisions in Swift v. Witchard, 103 Ga. 193.

Thus it is apparent, as before stated, that there is no controlling decision on this question and we are remitted to a search for some general considerations which may be decisive. It seems to me that these may be found and that they favor the view that a prosecution may be regarded as having been instituted even though a warrant has not been executed.

The first one of these considerations is found in the rule applied in civil actions and proceedings to an analogous situation. There it has many times been held that the mere issue of various forms of civil process for service or other execution is sufficient independent of statute to effect the commencement of a case or proceeding. Carpenter v. Butterfield, 3 Johns. Cases, 146; Cheetham v. Lewis, 3 Johns. 42; Bronson v. Earl, 17 Johns. 63; Ross v. Luther, 4 Cowen, 158; Mills v. Corbett, 8 How. Pr. 500; Hancock v. Ritchie, 11 Ind. 48, 52; Howell v. Shepard, 48 Mich. 472; Webster v. Sharpe, 116 N. C. 466, 471.

I see no reason why a similar rule should not be applied to criminal proceedings, at least for the purposes of such an action as this.

Then there is another reason resting on justice which seems to me to lead us to adopt this conclusion. In opposition to what was said in the South Carolina case already referred to, the sole foundation for an action of malicious prosecution is not “the wrong done to the plaintiff by the direct detention or imprisonment of his person.” In an action for false imprisonment that would be so. But in an action of the present type, the substantial injury for which damages are recovered and which serves as a basis for the action may be that inflicted upon the feelings, reputation and character by a false accusation as well as that caused by arrest and imprisonment. This element “indeed is in many cases the gravamen of the action.” Sheldon v. Carpenter, 4 N. Y. 579, 580; Woods v. Finnell, 13 Bush Repts. 628; Townsend on Slander, sec. 420; Wheeler v. Hanson, 161 Mass. 370; Gundermann v. Buschner, 73 Ill. App. 180; Lawrence v. Hagerman, 56 Ill. 68; Davis v. Seeley, 91 Iowa, 583.

But no matter how false and damaging the charge may be in a criminal proceeding upon which a warrant may be issued, damages for the injury caused thereby cannot under any ordinary circumstances be recovered in an action for libel or slander. Howard v. Thompson, 21 Wend. 319, 324; Woods v. Wiman, 47 Hun, 362, 364; Sheldon v. Carpenter, supra; Dale v. Harris, 109 Mass. 193; Gabriel v. McMullin, 127 Iowa, 427; Hamilton v. Eno, 81 N. Y. 116; Newell on Malicious Prosecution, sec. 10.

Therefore, it follows that a person who has most grievously injured another by falsely making a serious criminal accusation against him whereon a warrant has been actually issued, may escape all liability by procuring the warrant at that point to be withheld unless an action for malicious prosecution will lie. It seems to me that under such circumstances we should hold that such action will lie, if for no other reason than to satisfy that principle of law which demands an adequate remedy for every legal wrong....

Vann, J. I concur in the result because there was merely an attempt to prosecute with no actual prosecution. The Mexican court did not acquire jurisdiction of the person of the plaintiff, for he was not arrested, nor was process or notice of any kind served upon him. He was not brought into court and the prosecution could not end because it was never begun. He could not be a party defendant until he was notified or voluntarily appeared. He was threatened with prosecution, but neither his person nor his property was touched. There can be no prosecution unless knowledge thereof is brought home to the alleged defendant in some way. If there had been a prosecution commenced the crime could not have outlawed during the defendant’s absence, as is admitted of record. While in civil actions, in order to arrest the Statute of Limitations, “an attempt to commence an action, in a court of record, is equivalent to the commencement thereof,” still the attempt goes for naught unless followed by service, actual or constructive, within sixty days. (Code Civil Proc. § 399.) The rule was similar at common law. Although, in order to prevent injustice, an action was deemed to be commenced by the delivery of process for service, it was never treated as effectual for any purpose unless actual service was subsequently made. The authorities cited in the prevailing opinion illustrate this proposition.

In the absence of controlling authority, which it is conceded does not exist, I favor restricting rather than enlarging the scope of the action. This accords with the general position of the court upon the subject.

Gray, Haight and Chase, JJ., concur with Hiscock, J.; Cullen, Ch. J., and Willard Bartlett, J., concur with Vann, J.

Order affirmed.