Goldmann, Ewart and Tomasulo. The opinion of the court was delivered by Ewart, J.s.c. (temporarily assigned).
This was a suit for malicious prosecution in which the plaintiff sought both compensatory and punitive damages. After a five-day trial, the jury returned a verdict as follows:
"We the jury unanimously find the defendants, John Thatcher and Catherine Thatcher are guilty of malicious prosecution in all 3 counts.
Further we find compensatory damages in favor of the plaintiff, Abraham Cabakov, against the defendant John Thatcher the amt. of $350.00 and further compensation damages against the defendant Catherine Thatcher in the amt. of .06 on each complaint signed by her.
Further in the matter of punitive damages we find in favor of the plaintiff Abraham Cabakov, against the defendant John Thatcher the sum of $10,000.00.
As to Catherine Thatcher, .06 cents verdict molded to read six cents on two counts equal .12 cents. And so say we all."
Defendants thereupon moved for a new trial on the grounds, inter alia , that the verdict was against the weight of the evidence and was excessive in amount. The trial judge in an oral opinion denied the motion as to that part of the verdict awarding compensatory damages, holding the verdict was supported by the proofs, but as to the part of the verdict awarding punitive damages the trial court said it:
"* * * must consider whether or not under the conditions and the circumstances and considering also the fact that malicious prosecution matters are not looked upon favorably in the law and that punitive damages are allowable -- taking all of those matters into consideration and these matters not being ascertainable by any particular standard, in awarding the amount of $10,000. punitive damages it appears as an irresistible, clear and convincing inference the verdict was the result of mistake, partiality, prejudice or passion, and a new trial is awarded upon the basis of damages, punitive damages only. I will sign such an order."
With permission of this court, granted pursuant to R.R. 2:2-3(b), plaintiff now appeals from the interlocutory order setting aside the verdict and granting a new trial as to punitive damages.
This action was based upon three criminal complaints which the defendants, husband and wife, swore out against the plaintiff. On January 11, 1950 defendant John Thatcher swore to a complaint before a local magistrate charging the plaintiff with having willfully and maliciously destroyed a new fence line and with letting cattle into the highway; on the same date defendant Catherine R. Thatcher swore to a complaint before a local magistrate charging the plaintiff with having willfully and maliciously destroyed certain boundary markers; and thereafter, following trial of an ejectment suit instituted by defendant Catherine R. Thatcher against the plaintiff, on or about April 10, 1951 she swore to a further complaint before a local magistrate charging the plaintiff with having committed perjury in the trial of the ejectment suit. Warrants issued against the plaintiff on each of these three complaints and plaintiff was twice taken into custody, once on the first two complaints and again on the third complaint. He was finger-printed by the police and held for the grand jury on each of the three complaints. Apparently he was not incarcerated, presumably having furnished bail.
On the first two complaints, plaintiff and his witnesses were present before the magistrate but neither of defendants appeared to support their charges nor were other witnesses called to support the charges. Nevertheless the magistrate held the plaintiff for the grand jury on each complaint. With respect to the third complaint, both defendants attended the hearing before the magistrate; there was a formal hearing at which both sides to the controversy were represented by counsel; and again the magistrate held the plaintiff for the grand jury.
Subsequently, and prior to the institution of this suit, the grand jury considered each of the three complaints and ...