Opinion
June 7, 1937.
In an action to recover damages for malicious prosecution, judgment in favor of plaintiff reversed on the law and a new trial granted, costs to appellants to abide the event. It was error to instruct the jury on the matter appearing in folios 352 to 354 of the record on appeal; and the modification thereof did not cure the error. It was error to charge the jury as a matter of law that the criminal prosecution ended in favor of the plaintiff. This is a question of fact that should not have been excluded from the jury's consideration. ( Petersen v. Metropolitan Life Ins. Co., 245 App. Div. 825; Halberstadt v. New York Life Ins. Co., 194 N.Y. 1, 10, 11.) Although no exception was taken to this erroneous instruction, we direct attention to it inasmuch as we are granting a new trial on another ground. Hagarty, Davis, Johnston, Adel and Close, JJ., concur.