Opinion
July, 1935.
In an action for malicious prosecution, order denying motion of plaintiff Fred Douglas to strike out a defense contained in the defendant's answer affirmed, with ten dollars costs and disbursements. In our opinion, the oral agreement for the dismissal of the indictments against the appellant was without valid consideration, but the order must be affirmed because, on the facts pleaded in the defense, the termination of the criminal proceeding against the appellant was not on the merits, but was the result of an agreement of compromise between the parties and an action for malicious prosecution cannot, therefore, be maintained. ( Follender v. Merl, 242 App. Div. 650; affd., 266 N.Y. 534; Halberstadt v. New York Life Ins. Co., 194 id. 1, and cases cited.) Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ., concur.