122 N.Y.S. 41 | N.Y. App. Div. | 1910
The amended complaint contains two counts. The first is for false arrest and imprisonment and the second for malicious prosecution. Both causes of action relate to the same arrest and prosecution. It is alleged that on the 20th day of May, 1909, the defendant caused the arrest of the plaintiff by a police officer, without a warrant or other legal process and without probable or justifiable cause “ upon the false charge of having by disorderly conduct committed a breach of the peace in that he had annoyed defendant by posting theatrical poster’s or bills upon a billboard attached to the premises under leasehold belonging to defendant at the corner of Amsterdam Avenue and 69th Street, in the Borough of Manhattan, City of New York,” and caused him to be taken to a police station and there made said charge against him, whereby the plaintiff was restrained of his liberty one hour, and "made the
It is quite likely that the evidence which will sustain the plaintiff’s causes of action will necessarily defeat the defendant’s counterclaim, and vice versa, for if the plaintiff entered upon the premises with the consent of the defendant-and of the owner of the. property, he was there lawfully and the defendant would be liable for false arrest, and, perhaps, for malicious prosecution; and if, on the other hand, plaintiff did the acts without the consent of the owner and of the defendant, he was guilty of a crime and would be liable to the defendant for the damages caused by the trespass. Our attention has not 'been drawn to any statute and no ordinance is pleaded making the acts with which the plaintiff was specifically charged according to the allegations of the complaint a breach of the peace ; nor has our attention been drawn to the statute which it was supposed plaintiff had violated, but we. presume that it was intended to make the charge under sections 1458 and 1459 of the Consolidation Act (Laws of 1882, chap. 410) which relate to disorderly conduct which tends to a breach of the peace, and which were continued in force, by section 1610 of the Greater New York charter. (See People ex rel. Frank v. Davis, 80 App. Div. 453 ; People ex rel. Smith v. Van De Carr, 86 id. 11; also, Greater New York Charter [Laws of 1897, chap. 378; Laws of 1901, chap. 466], § 707, as amd. by Laws of 1905, chap. 638, and article on The Offense of Disorderly Conduct, by Magistrate House, N. Y. L. J., Feb. 28,1910.) If, however, the facts did not constitute the crimé with which plaintiff was charged, sections 121 and 2036 of the Penal Law make the acts for which the plaintiff was azvested, according to' the complaint, answer and counterclaim, a cz’ime. If the acts for which plaintiff was arrested and with which he was chaz-ged constituted a crime, I presume that the defendant wonld not be liable to an action for false arrest aizd malicious prosecution mez'ely because the dime was not properly designated, for it is not apparent that greater damages would be sustained for an arrest and
It follows, therefore, that the interlocutory judgment should be reversed, with costs, and the demurrer sustained, with Costs, but with leave to the defendant to answer over by omitting the counterclaim, upon payment of the costs of the appeal and of the demurrer.
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.
Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs.