Roberts v. Homer P. Snyder Manufacturing Co. , 242 A.D. 244 ( 1934 )

Per Curiam.

The complaint for malicious prosecution sets forth, among other things, that defendant instituted the criminal proceeding against plaintiff. This allegation was traversed by defendant’s general denial. Later in its answer defendant pleaded some special and partial defenses in the form: “ That in causing the arrest,” defendant did so on the advice of the proper authorities, and without malice, etc. If, as claimed by the appellant, it was error for the court to charge the jury, as a matter of law, that defendant was bound by its admission, in its special defenses, of a fact denied in its general denial (Brady v. Hutkoff, 13 Misc. 515; affd. on opinion below, 155 N. Y. 681; Balmford v. Grand Lodge, 19 Misc. 1; Kelly v. Theiss, 22 id. 530; Young v. Katz, 5 N. Y. Ann. Cas. 58, and notes thereon), the defendant failed to take an exception to such charge, and cannot now avail itself of the question of law. We think the questions decided were fair jury questions, and we find no error.

All concur, except Edgcomb, J., who dissents and votes for reversal on the law and facts in respect of want of probable cause, and for a new trial. Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.

Order reversed on the facts and motion for a new trial denied, and judgment modified by increasing the amount of the verdict to $1,100, and as modified affirmed, with costs to the plaintiff.