Burns v. Erben

1 Rob. 555 | The Superior Court of New York City | 1864

By the court, Robertson, J.

The language of the complaint is. susceptible of no other interpretation than a charge of illegal arrest, detention and restraint of liberty. The, action is one of false imprisonment, therefore, and not of malicious prosecution, which is a species of slander or libel, leading to peculiar injury, to wit: arrest by process of law. Undoubtedly in the latter case the plaintiff is to make out the negative, to wit: a want of probable cause, but slight evidence only is sufficient for the purpose. If the facts sworn to by the malicious prosecutor do not furnish prima, facie grounds to infer that a crime has been committed, the magistrate issuing a warrant is guilty of false imprisonment.

The Metropolitan police act allows the officers of police to arrest persons suspected by them, without a warrant, where there is reason to believe a felony has been committed (Laws of 1857, §8). A dangerous power, unless an immediate investigation is to be had by some magistrate. In this case a felony had been committed, and the plaintiff was arrested on the suspicions of a sergeant of police by the defendant Frost, who was a roundsman merely.

I do not find evidence enough to implicate the defendant Erben in the arrest. He merely disclosed what he knew, and only expressed an opinion that there was enough of suspicion against the defendant to have her examined. He did not request or urge any arrest, but left it to the officer at the station house to decide on its propriety. Nor did he make any charge. Such officer appeared to exercise the authority given him by law of arresting persons that he suspected.

The plaintiff has recovered against the officer nominal damages, which need not be interfered with, and the complaint was properly dismissed against the defendant Erben.