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GRAHAM v. CITY OF N. Y.

28 A.D.2d 245 (1967)

David E. Graham, Respondent, v. City of New York, Appellant, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, First Department.

November 16, 1967.

Attorney(s) appearing for the Case

Eric J. Byrne of counsel (Stanley Buchsbaum with him on the brief; J. Lee Rankin, Corporation Counsel), for appellant.

Murray L. Lewis of counsel (Joseph B. Castleman with him on the brief; Harry H. Lipsig, attorney), for respondent.

RABIN and McNALLY, JJ., concur with CAPOZZOLI, J.; McNALLY, J., in memorandum in which RABIN, J., concurs; STEUER, J., dissents and votes to reverse and order a new trial in opinion in which EAGER, J. P., concurs.

CAPOZZOLI, J.

The elements of an action for malicious prosecution are clearly specified in Gastman v. Myer (285 App. Div. 611). At page 612 the court said: "It is elementary that in order to make out a cause of action for malicious prosecution arising out of a criminal proceeding, plaintiff must allege and prove (1) that defendant instituted or continued a criminal proceeding against plaintiff; (2) malice...

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