FIRST DEPARTMENT, NOVEMBER TERM, 1892. paid equal to those which, by order of the General Term, were made to abide the event, in no way affects or overrides the disposition made by the General Terin of the appeal. In other words, the learned judge allowing the amendment did not attempt to change the direction made by the General Term, with respect to what should be done with costs which were ordered to abide the event. And should the appellant finally succeed in the action he will be entitled to tax the costs over again, pursuant to the order of the General Term. This latter order, moreover, affected the costs at Special as well as those at General Term; and to be consistent, if it was thought that the order of the General Term, requiring the costs to abide the event, in any way restricted the right to allow costs as a condition of the amendment, then the Special Term costs should have been excluded as well as the General Term costs. The question as stated, however, is simply what terms did the judge, allowing the amendment to the complaint, impose as a condition? His order as shown, says, "a full bill of costs and disbursements to date." In Havemeyer v. Havemeyer (44 Sup. Ct., 170), it was held that the phrase "on payment of costs of the action to the present time," as the consideration of an amendment, meant such costs as would go to the party against whom the amendment was allowed, in case there had been a determination favorable to him at the date of the order granting leave to amend. We think, therefore, it was an erroneous construction of the judge's order to hold that thereunder the General Term costs were to be excluded. In addition to these the clerk disallowed fifty dollars term fees, this item being disputed on its merits. It would appear that at the first term, after all the defendants were served, and the case was ready to be tried, it was reached and disposed of. We do not think the fact that one or all of the defendants placed the cause on the calendar and noticed the same for trial before the same was in condition to be tried gave them any right to term fees, because the cause was not properly on the calendar until all the parties were served and had answered. And it would appear that as soon as the cause was thus ready it was reached and tried; and the clerk's ruling excluding the item of fifty dollars term fees we think was correct. We think, however, that so much of the order as sustains the FIRST DEPARTMENT, NOVEMBER TERM, 1892. clerk in disallowing the General Term costs should be reversed, with costs and disbursements. In view of the fact that the terms imposed by these orders seem to be very stringent and onerous, this disposition of this appeal is without prejudice to any application which respondent may make to Mr. Justice ANDREWS to modify the terms of the original order. VAN BRUNT, P. J., concurred. Order reversed as directed in opinion, with costs and disbursements. O'BRIEN, J. (Appeal No. 2): The facts necessary to present the question urged on this appeal have been referred to in the opinion in Bowen v. Sweeny herewith handed down. This appeal is from so much of the order of May 2, 1892, as reads as follows: "Save and except as to the General Term disbursements which should, on retaxation, be disallowed by the clerk." It is insisted, with respect to these disbursements, as it was insisted in regard to the costs, that when the General Term ordered a new trial, with costs to appellant to abide the event of the action, it ordered that the appellant should only become entitled to those costs, and to the disbursements which formed a part of them, when and if the defendant should finally succeed in the action. The error in this reasoning we have endeavored to point out in the former appeal, and it will be seen that we would agree with the respondent if it could be held that the order of the General Term in any way controlled the right of the judge granting the amendment to impose such terms as he thought proper and just. It remains for us only to construe his order, which stands unappealed from and unmodified. The plaintiff was asking a favor of the court which was granted on certain conditions, namely, that the costs and disbursements should be taxed by the clerk. As to what costs and disbursements were intended, we have already pointed out. We think, therefore, that the appellant is right in the construction given to the order of the learned judge, and that the order appealed from must be reversed, with costs, and the clerk directed to restore to such bill of costs all the items of disbursements disallowed, and to retax the same accordingly. 66 48 142a0655 FIRST DEPARTMENT, NOVEMBER TERM, 1892. In view of the fact that the terms imposed by these orders seem to be very stringent and onerous, this disposition of this appeal is without prejudice to any application which respondent may make to Mr. Justice ANDREWS to modify the terms of the original order. VAN BRUNT, P. J., concurred. Order reversed, with costs, and the clerk directed to restore to such bill of costs all the items of disbursements disallowed, and to retax the same accordingly. This disposition of this appeal is without prejudice to any application which respondent may make to Mr. Justice ANDREWS to modify the terms of the original orders. PATRICK SHEAHAN, APPELLANT, V. THE NATIONAL Malicious prosecution — want of probable cause — burden of proof — demanding too much by mistake in a replevin suit does not show malice. Patrick Sheahan, who was employed, in and prior to 1876, by a steamship company as a general passenger agent, being in default in making returns, as alleged by the company, was sued by it in replevin for the recovery of possession of certain tickets. The sheriff, having certified that the tickets had been eloigned, the company, about March 1, 1876, procured an order of arrest in the replevin action, by virtue of which, for want of bail, Sheahan was imprisoned for sixty-nine days. Subsequently the order of arrest was vacated. The replevin action was decided in Sheahan's favor, but in another action for an accounting, brought by the company against Sheahan, it recovered a large sum of money for tickets received by him as agent and not accounted for. Subsequently Sheahan brought an action for malicious prosecution, wherein the Held, that, there being no dispute as to the facts, the question whether there was That the burden was on the plaintiff to show affirmatively that the company had FIRST DEPARTMENT, NOVEMBER TERM, 1891. That as it was conceded that Sheahan had torn up a large number of prepaid tickets, the company was justified in bringing replevin for their retention; and that the fact that the company might by mistake have demanded too many tickets did not show malice. EXCEPTIONS of the plaintiff Patrick Sheahan, taken upon a trial had at the New York Circuit before the court and a jury, at which the complaint was dismissed and the exceptions were directed to be heard in the first instance at General Term; and also an appeal by said plaintiff from an order of said court, made on the 9th day of March, 1891, dismissing the complaint. It appeared, upon the trial of the action, that the order of arrest was granted in the replevin action under section 179 of the Code of Procedure. B. Doran Killian and Denis McMahon, for the appellant. John Chetwood, for the respondent. LAWRENCE, J.: The plaintiff, prior to the 26th day of February, 1876, had been for a long time in the employ of the defendant as a general passenger agent for the selling of tickets for passage on the steamships of the the defendant, entitling the persons named in said tickets to passage. His employment was by parol, and in the course of such business he employed a number of sub-agents, and received from the defendant a certain commission for the tickets so sold. He alleges that on the 26th of February, 1876, the defendant maliciously, intending and contriving to injure him without just or probable cause, caused and procured a certain civil action in which the said defendant was plaintiff and this plaintiff was defendant, to be commenced in this court, and in said complaint falsely, maliciously and without just and probable cause alleged that the plaintiff detained 3,816 passage tickets, which were its property, and demanded judgment for the possession of the same, and that in truth, and in fact, at the commencement of said action he did not detain any of the property of the defendant. He avers that the said prosecution was terminated in plaintiff's favor by a judgment dismissing the complaint on the merits with FIRST DEPARTMENT, NOVEMBER TERM, 1892. costs. He further alleges that on or about the 1st of March, 1876, the defendant further maliciously intending and contriving to injure the plaintiff with malice and without just or probable cause, procured and caused to be procured, and made by several of its officers, agents and servants, several affidavits in said action, in which it was falsely, maliciously and without probable cause alleged that certain property belonging to the steamship company was wrongfully detained by the plaintiff, and that in said affidavits an order of arrest was issued against him, whereby the sheriff of the city and county of New York was directed to arrest him, and that his bail was therein fixed at $10,000, and that thereunder his arrest was procured, and that he was imprisoned in jail for the space of sixtynine days in default of said bail. Then follows an allegation that all this was done by the defendant, its agents, etc., without probable cause, and that the plaintiff was compelled to, and did, until the determination and judgment in his favor, expend large sums of money and incur great liability to pay money in the necessary defense against said arrest, and in procuring the annulment of the same. The defendant in its answer, admitting that it commenced the action referred to in the complaint, and that it procured the order of arrest therein stated, avers that the plaintiff neglected to make weekly reports, which, by the terms of his agreement with the defendant he was required to make, of the sale of said tickets intrusted to him, and that after his discharge in October, 1875, he continued to sell and dispose of such tickets without the defendant's knowledge or consent. It alleges that in the action brought for the recovery of the tickets a requisition was issued to the sheriff of the county of New York to take the same from the plaintiff and deliver them to the defendant; that the said sheriff certified and made return that said tickets had been eloigned, removed, concealed or disposed of, so that he could not find the same; and that thereupon the order of arrest referred to in the complaint was made, which said order of arrest was eventually vacated. It is further averred that said action was brought and said order of arrest obtained on advice of counsel; and that in another action in the Superior Court of the city of New York, brought by the plaintiff against the defendant for the settlement and adjustment of the matters and accounts between the parties, judgment was rendered in favor of the defend |