Daly, F. J.
We cannot say that the justice erred. The act for which the plaintiff was arrested was not a criminal offense. He was supplied with certain articles of food at the defendant’s eating saloon, and received a check indicating the *222amount to be paid at the bar, which check, it was alleged, he kept, and substituted in its place one which he had in his possession for a much smaller amount, which was taken as the true voucher, and the amount of which only, he paid. However reprehensible or contemptible such an act may have been, it was not one for which he could be punished criminally, and as the plaintiff testified that the defendant directed the police officer to take the plaintiff into custody—a fact which the defendant did not controvert—and as the arrest was made without a warrant, the defendant, as a party assisting in the making of an unlawful arrest, was liable to an action (Dalton, c. 170, §§ 3, 5). There was no breach of the peace to authorize an arrest without warrant. If the magistrate had convicted the plaintiff under the act (3 Laws of 1833, p. 11, § 8), of disorderly conduct, in his opinion tending to a breach of the peace, that circumstance might have been available as a defense; but all that appears from the return is, that 'the magistrate discharged the plaintiff. The return does not state whether he was convicted and required to give security for good behavior before he was discharged, or not, and as matter of law, we cannot hold that the act was one tending to a breach of the peace. Words or acts of provocation, to have that effect, must tend immediately to a breach of the peace (4 Inst. 181; The Queen v. Langley, Salk. 697), and we cannot say that the direct and immediate tendency of the plaintiff’s act was to provoke a breach of the peace.
Oaedozo, J., concurred.
Brady, J. Upon an examination of authorities bearing upon that subject, I held in Willis v. Warren, (1 Hilton Rep. 590), the rule to be, that a police officer or constable might arrest a person virtute officii, without warrant, for a breach of the peace committed m his presence. The arrest of the plaintiff was therefore unlawful; but the defense interposed, if true, was such as would justify the award of nominal damages only. Judge Alker instructed the jury that they might consider the defense proved in mitigation of damages, and the defendant had the benefit of all that could be ruled in his favor.
Judgment affirmed.