Allen v. Fromme

126 N.Y.S. 520 | N.Y. App. Div. | 1910

Miller, J.:

The plaintiff was arrested on a void execution issued by the defendant’s testator. He gave a bond for the jail limits and was released from the custody of the sheriff. He thereupon moved at Special Term of the" City Court, out of which the execution was issued, to vacate it. The motion was opposed by the said testator, and was denied. An appeal was taken to the Appellate Term, which likewise was resisted by the said testator, and the order of the court below was reversed and the execution was vacated. Thereupon this action was brought for false imprisonment. The plaintiff was permitted to.prove that he had occasion in his business to go outside of the jail limits, and that he desired during his vacation, as was his custom, to go to Kentucky to visit his mother, but that he did not do either because of his undertaking. He was also permitted to prove the efforts made by him to vacate the execution and the resistance offered thereto by the said testator.' In support of the point that the imprisonment terminated upon the discharge from the custody of the sheriff, the appellant cites Allen v. Shed (10 Cush. 375); Lane v. Holman (145 Mass. 221); Fuller v. Bowker (11 Mich. 204). It is to he noted that in the Michigan case it was held that there was not even a constructive ■ arrest in the first instance, and in Lane v. Holman the. point .was whether expenses incurred by a debtor who had been illegally arrested, in submitting himself to an examination pursuant to a recognizance, entered into to procure a discharge from imprisonment, were elements of damage. However, those cases do assert the .proposition that, after a person gives an undertaking and pursuant to it is discharged from arrest on a void process, he is no longer under restraint.. If those decisions be sound, it follows that although the plaintiff gave an undertaking, in which he bound himself to remain within the jail limits, and althouglvtlie defendant’s testator vigorously resisted all his attempts to vacate the void execution, he should have gone about his business unrestrained,, thereby subjecting himself to fresh arrests,, which he had every reason to believe would occur if he went beyond the jail limits, and. his. sureties to an. action on the undertaking. And, because he undertook in an orderly way to have the restraint upon his liberty removed by,an adjudication of the courts, it is said that none of the damage thus sustained was due to the false imprisonment, but that the process was void and the plaintiff’s submission to it voluntary. Of course, the restraint was illegal, but that illegality is the basis of this action. The- mere fact that a subsequent arrest, jf the plaintiff had gnnfi hoynnrl tbp jail firmfe, w»n1d 'liqY° been illegal,-nr that tbn pln.b#lff-^mgtit.....hftvn minnnnpfnlly--dnfftnAp!fl his sureties, .is nn proof that be 'maa-.nnt nndev restraint Certainly the defendant, whose testator resisted' the plaintiff’s efforts to be released from the illegal restraint to which he was subjected, is in no position to assert that he was under none at all.-

While no case in' this State -identical with this is called to our attention, the question involved has been decided by the Court of Appeals. (Worden v. Davis, 195 N. Y. 391.) That case involved the right to recover the disbursements and expenses incurred by the ■ plaintiff after the discharge on his own recognizance. The question turned, as Judge Hiscock stated, upon the duration and termination of the imprisonment, and it was decided, in effect, that the imprisonment continued until the order of the court dismissing the warrant. What was said in that case applies with full force • to this and relieves us from the necessity of further discussion of the question.

The point already discussed nullifies the next point made by the appellant, to wit, that it w'as error to admit evidence as to what was done by the plaintiff to vacate the execution and of the opposition of the defendant’s testator thereto. Certainly, that evidence had a direct bearing upon the question whether the restraint terminated with the actual discharge from the custody of the sheriff. Had the plaintiff made a claim for the expenses incurred ■ there would have been no question as to the admissibility of such evidence. Fortunately for the defendant no such claim was made and ho evidence was offered as to expenses, but, nevertheless, the plaintiff was entitled to prove the history of the entire transaction as bearing upon the animus of the defendant and the general damages. He was properly permitted to show that he was' subjected not only to the ignominy of an arrest, but to the restraint of the jail limits while undertaking to obtain an adjudication freeing himself from such restraint, and that the defendant’s testator resisted his efforts throughout.

While the verdict of §2,500 is large, we are not prepared to say that it is too much for the indignity of the arrest and for the stigma thus put upon the reputation of a young man who was about to enter, one of the professions.

The judgment and order should be affirmed, with costs. •

Inge ah am, P. J., McLaughlin, Laugiilin and Dowling, JJ., concurred.

Judgment and order affirmed, with costs.