Opinion
October 5, 1926.
James H. Hickey, for the plaintiff.
Reese D. Alsop, for the defendant.
The order of arrest issued out of this court by a judge having jurisdiction, although erroneous and subsequently vacated, protects the defendant who procured it. Even the showing of malicious motives and the want of probable cause will not support an action for false arrest. ( Marks v. Townsend, 97 N.Y. 590.) The second cause of action is accordingly dismissed.
The issuance of the order of arrest by a court having jurisdiction of the parties and the subject-matter is sufficient evidence of probable cause although this court was afterwards reversed by a higher court. In order to succeed the plaintiff was required to show that the order of arrest was procured as the result of fraud, malice or oppression. ( Beall v. Dadirrian, 62 Misc. 125; Crescent City Live Stock Co. v. Butchers' Union, etc., 120 U.S. 141.)
This he has failed to do.
Complaint is accordingly dismissed.