Lee v. Levison

' MELVIN,

Action to recover damages for malicious prosecution of Emma C. Lee on a charge of embezzlement. The trial court granted a nonsuit on the motions of Alexander Levison and National Surety Company of New York.

[167]

The action was dismissed as to the other defendants. Prom the judgment following the nonsuit and from an order denying their motion for a new trial Emma C. Lee and H. Lee (her husband) appeal.

The Levisons and Mary Ostroski owned an apartment house, and in July, 1908, Mr. Levison employed Mrs. Lee as manager thereof and as housekeeper. A few months later the National Surety Company executed a bond to Mr. Levison indemnifying him against loss on account of any personal dishonesty of Mrs. Lee “amounting to larceny or embezzlement.” As manager Mrs. Lee collected the rents, made certain expenditures, and accounted monthly to Mr. Levison. On April 19, 1909, Mr. Levison wrote her that beginning May 1st of that year he preferred to pay all bills of the apartment house at his office. He instructed her to get together and send to him any unpaid bills up to that time. She was authorized to pay bills for removing garbage and other similar items of less than five dollars, making reports of such expenditures at the next settlement with him. Plaintiff continued her practice of rendering monthly accounts until her discharge, which occurred on June 11, 1909. After her discharge difficulties arose between Mrs. Lee and Mr. Levison because of their disagreement regarding the balance of their accounts, and also because of her refusal to vacate the premises. She did leave the apartment house, after an interview with someone connected with the district attorney’s office. Mr. Levison then authorized Mr. J. W. Bernstein, who had acted as his broker in obtaining the surety bond, to take up with the surety company Mrs. Lee’s alleged default in payment of sums due to the owners of the apartment house. Mr. Bernstein examined her books, and after a conference with her wrote to the surety company a letter in which he charged that she had collected and' failed to account for various rents, amounting in the aggregate to $158. He also stated that there were “other irregularities” which Mr. Levi-son was investigating. After a personal interview between Mr. Bernstein and the manager of the surety company the matter was turned over to Mr. Sayers, adjuster for that corporation, and he with Mr. Bernstein conducted the subsequent negotiations with Mrs. Lee. In their conferences Mrs. Lee submitted an itemized demand for credits amounting to something more than two hundred dollars. About half of