## Facts

- Joseph Fusario and Angelo Cavallaro occupied adjoining buildings separated by a narrow alley.
- While Cavallaro was shoveling snow in the alley, Frank Fusario (Joseph’s brother) assaulted him; Joseph was not present.
- Cavallaro initially told a police officer that Frank, not Joseph, committed the assault.
- Based on information supplied to police by a neighbor, Joseph was arrested and prosecuted for breach of the peace, later supplemented by a charge of assault with intent to disfigure.
- Cavallaro appeared during continuances and at trial, and testified that Joseph held him while Frank bit off Cavallaro’s nose; the trial court found this testimony knowingly false.
- Joseph was acquitted of the criminal charges.
- On the day the criminal matter first came before the city court, Cavallaro caused a civil assault-and-battery action to be filed against Joseph and Frank arising from the same incident, and testified consistently with his criminal-case testimony.
- In the civil action, judgment entered for Joseph and against Frank.
- Joseph sued Cavallaro for malicious prosecution; the trial court awarded Joseph $300, and Cavallaro appealed.

## Issues

1. Whether a person who did not formally initiate criminal charges may be liable for malicious prosecution by knowingly aiding, assisting in, or adopting the prosecution through false testimony and related conduct.
2. Whether a defendant who tried the case on the merits without objection may, on appeal, claim a fatal variance between a complaint alleging instigation and proof showing aiding or adoption.

## Decision

- The judgment for Joseph Fusario was affirmed.
- The court held that the elements of malicious prosecution were satisfied: termination in Joseph’s favor, want of probable cause, and malice.
- The court held Cavallaro liable because he knowingly furthered and adopted the prosecution, including by giving voluntarily false testimony and promptly using the same accusation as the basis for a civil action.
- The court rejected Cavallaro’s variance argument because he litigated the case on the merits without timely objection.

## Legal Principles

- Malicious prosecution requires: (1) favorable termination for the accused, (2) want of probable cause, and (3) malice.
- Liability is not limited to the person who formally procures a prosecution; one who knowingly aids, abets, assists in, or adopts the prosecution may be liable as a joint tortfeasor.
- Knowingly false testimony supporting criminal charges may support findings of both lack of probable cause and malice.
- A party who contests a case on the merits without raising pleading-variance objections may not later seek reversal on that basis.

## Conclusion

The court affirmed liability for malicious prosecution where the defendant, though not the formal initiator of the criminal case, knowingly advanced and adopted an unfounded prosecution by giving false testimony and pursuing related civil litigation grounded on the same false accusation.


Fusario v. Cavallaro, 108 Conn. 40, 142 A. 391 (Conn. 1928)