138 N.Y.S. 1017 | N.Y. App. Div. | 1912
Lead Opinion
The action was brought against a city magistrate, two police officers and the appellant Drew. The jury found a verdict of six cents against the magistrate, exonerated the police officers and found for $2,000 against Drew.
On February 5, 1907, the grand jury at Ashtabula, 0., indicted one Stephen Davem upon the ground of felonious assault. On May 11, 1908, the Governor of this State received extradition papers from the Governor of Ohio and issued his warrant which was received by the police commissioner on May 12, 1908. The claim was that on July fourteenth Drew caused the plaintiff to be identified as Stephen Davem, the person whose arrest and extradition was called for by said papers. He was arrested, locked up, taken before the magistrate, photographed, measured, his finger prints taken, and held over until the sixteenth, when a telegram was received from the Ohio authorities that the person held was not Stephen Davern but his brother James F., whereupon he was discharged.
Plaintiff testified that he was an ironworker; that in July, 1908, he was living at 865 West Nineteenth street; he had been a resident of the State and city six to eight years; he was working and had been working just before July fourteenth for the George A'. Fuller Construction Company. He had received a fall on the twelfth of May and had been laid up by reason thereof and been under the doctor’s care until July fourteenth.
Drew was the executive officer of the executive committee of the National Erectors’ Association, composed of a number of firms formed for mutual assistance in the' conduct of labor matters. It was his special business to render such assistance as he could whenever said members of the association had any trouble in connection with carrying out their labor policy, and it was his duty to investigate crimes of violence, and to gather evidence of the commission of any crimes of violence in connection with such members. It seems that he had had pre
They were introduced to Boss and went with him to the neighborhood of plaintiff’s house. The officers testified that Boss pointed out plaintiff to them on the sidewalk and that they arrested him; that he said he was hot Stephen but was Jim, and that he called up to his wife, “ Girl, they have got me arrested for Steve,” and she came down, brought him his coat and protested that he was Jim; that he showed his watch in which his name was engraved, but nevertheless he was taken down to police headquarters. Carey telephoned to Drew and Drew came to police headquarters; there again plaintiff asserted his identity and produced his labor cards for purposes of identification, and insisted that he was Jim and not Steve: Plaintiff testified that Drew then said to him: “ ‘You are Stephen Davern; we have got the goods on you and you might as well throw up first as last; we have got you right anyhow, dead right,’ he says, ‘ and you might as well throw up right here and be done with it and it will go easier with you.’ * * * In the court room * * * he says, ‘You might as well make it easy for yourself; we have got you now.'’ "x" 'x\ * When they took me down into the court the next afternoon Mr. Drew came over * * He says, ‘ I have looked you up; I have been over to Thompson & Starrett’s office and I have looked over their books * * *. You were away off the job three
Drew testified: “ Captain Carey showed me this little book that has — his due book, plaintiff’s exhibit 1. I called Captain Carey’s attention to the fact that his own book showed that he had been in Cleveland and Ashtabula just a few months prior to this assault. ” Plaintiff was taken before a city magistrate, in violation of the provisions of section 827 of the Code of Criminal Procedure, which require a person under extradition papers to be taken before a justice of the Supreme Court or a county judge, who in the county of New York would be a justice of the Court of General Sessions, and provide for a speedy hearing and for testing the question of identity in a habeas corpus proceeding. Before the magistrate a short affidavit was made by one of the officers, Fogarty, and the magistrate was asked to commit him for twenty-four hours, which he did. They came down again the next day and another request for twenty-four hours’ adjournment was made and given. In the meanwhile Inspector McOafferty, on July fourteenth, had telegraphed out to the prosecuting attorney at Jefferson, 0. : “We have arrested a man answering description of Stephen Davern, claims his name-is James F. Davern, and that he is a brother of Stephen Davern, and he was in Ashtabula in May, 1907, and is known to'Chief of Police Lask. Answer.” On the fifteenth Drew, on his own initiative, telegraphed to the prosecuting attorney: “Wire immediately complete description of man wanted, including complexion, eyes, nose, teeth, shape of face, weight and also points of difference between him and James. Which one. has scar between eyes ? Man here is identified as Steve and will be held until tomorrow noon.” On the sixteenth Taylor, the prosecuting attorney at Jefferson, telegraphed to McOafferty a description.of Steve, saying also: “ Jim wore mustache when seen in Chicago two weeks ago; they
This is a brief statement of this record, but from it it is clear, I think, that Drew, in the prosecution of his work, gave information to the police and instituted the proceedings under which the plaintiff was arrested. He informed them that, he had a man who would positively identify Steve Davern and he produced the man . and put him in contact with the police. He was immediately called down to headquarters after the arrest and had himself a personal conversation with the plaintiff. He also appeared in the Police Court and he also busied himself in sending telegrams to Ohio. His general authority in the matter is illustrated by the telegram of the prosecuting attorney at Jefferson that he should satisfy himself before release. He attempts to avoid responsibility upon the ground that he merely gave information to public officials and, therefore, was not personally responsible for the exercise by them of their discretion and determination Upon information, and he also repudiates the suggestion of identification upon his own part, but that he simply put them in touch with the man whom he believed upon his own knowledge could make the identification.
In Grinnell v. Weston (95 App. Div. 454) Mr. Justice •Ingraham, in discussing the question, in reviewing Thompson v. Fish (50 App. Div. 71), said: “ If that case determined that where an individual requires a police officer to arrest an innocent person, and the police officer, acting upon the statement
I think that there can be no doubt that this arrest was instigated by Drew. At any rate it was a fact for the' jury. It was not error not to direct a verdict or to dismiss the complaint as to him. In regard to Drew the court charged: “ Now, as to defendant Drew, if you determine, gentlemen of the jury, that the defendant Drew did nothing more or less than simply furnish information to the police authorities, upon which they acted, and that although there was a mistake in such information, the information was furnished in good faith, and simply for the purpose of aiding the police in apprehending the party mentioned in the Governor’s warrant, then your verdict ought to be for the defendant Drew, but, if the proceedings that led up to the arrest of this plaintiff were instituted by Drew, if he directed by any method the arrest of this man, although he was not present at the time, if he directed the arrest and aided it, why, then your verdict ought to be for the plaintiff as against the defendant Drew.” And again: “ Now, as to the defendant Drew, if you determine that the plaintiff is entitled to a verdict as against the defendant Drew, you have a right to consider
Counsel for Drew said: “ I ask your honor to charge the jury that from the time the plaintiff was taken into custody by the police officers he was subject to the control and direction of the said officers, and subsequently to the magistrate before whom he was arraigned, and the defendant Drew had no power to-require either the detention or the release of the prisoner, and cannot be held liable for the exercise of any judgment or discretion on the part of such police officers or magistrate, unless it is proven to the jury’s satisfaction that the defendant Drew in bad faith and with the purpose of deceiving the police officers caused the arrest and detention of the plaintiff. The Court: I refuse to charge in the language requested.” That refusal was proper because the latter part of that request injected “ bad faith and with the purpose of deceiving the police officers,” which is not an element. Counsel for Drew. “ [Exception.] I ask your honor to charge the jury that the defendant Drew is not liable for the imprisonment of the plaintiff on the commitment by the city magistrate. The Court: I refuse to charge that. * * * [Exception.] The Court: I charge the jury that if the action of the defendant Drew was not for the purpose of giving information, but was for the purpose of bringing about the arrest of this plaintiff, and if you find that the plaintiff is entitled to a verdict against the defendant Drew, he is liable for all subsequent acts, if the' proceedings were incited or started by him and were not started for the purpose of furnishing information to the police. [Counsel]: Í except to that. ” It seems to me that the court was right; that if this whole proceeding was instigated, planned and engineered by Drew, as the jury had a right to find from the evidence, acting in his capacity as private prosecutor for the benefit of the association of which he was the executive officer, then it must follow, I think, that he was responsible for all the logical and necessary consequences of such act.
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the verdict to $1,000; in which event the judgment as so modified and the order appealed from will be affirmed, without costs in this court to either party.
Laughlin and Miller, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.
Dissenting Opinion
The action is for damages for false imprisonment.
It appears that at some time prior to February 5, 1907, one Stephen Davern, the plaintiff’s brother, was indicted in the State of Ohio for felonious assault. A request for the arrest and extradition of said Stephen Davern was transmitted by the Governor of Ohio to the Governor of this State who thereupon issued his warrant for the arrest of said Stephen Davern, which warrant was received by and filed in the office of the police commissioner of the city of New York on or about May 11, 1908.' It thereupon became the duty of the police to arrest the said Stephen Davern if he should be found within the city of New York.
The defendant Drew resided in the city of New York, was the commissioner and executive member of the executive committee of the National Erectors’ Association,, an organization of firms engaged in the business of erecting structural steel and iron work, which was formed for the' purpose of mutual assistance in the conduct of labor matters. Drew had had nothing to do with the indictment of Stephen Davern in Ohio, but it was a part of his duty to aid in the investigation and prosecution of crimes in consequence of labor troubles, as it is to be inferred that the crime charged against Stephen Davern had been. Drew did not know Stephen-Davern, but he received information from one Boss, who claimed to know Davern, and to have worked with him, that said Stephen Davern was m the
The plaintiff has sued, in addition to the appellant, the two police officers who made the arrest and the city magistrate who held the plaintiff. The jury exonerated the police officers, found a verdict for six cents damages against the magistrate, and a substantial verdict against the appellant.
The trial justice charged the jury as follows: “Now, as to the defendant Drew, if you determine, gentlemen of the jury, that the defendant Drew did nothing more or less than simply furnish information to the police authorities, upon which they acted, and that although there was a mistake in such information, the information was furnished in good faith, and simply for the purpose of aiding the police in apprehending the party mentioned in the Governor’s warrant, then your verdict ought to be for the defendant Drew.” This was not only an accurate statement óf the law (Brown v. Chadsey, 39 Barb. 253; Farnam v. Feeley, 56 N. Y. 451; Teal v. Fissel, 28 Fed. Rep. 351; 19 Cyc. 329), but it constituted the law of the case for the jury which it was their duty to follow; If they followed it they should have found in favor of the appellant for there is not a particle of evidence that he did anything more than to communicate to the police, in good faith, information which he believed. That he was desirous that Stephen Davern should be apprehended we do not doubt, and no blame can properly attach to him for entertaining such a desire, but there is nothing to suggest even a suspicion that he was actuated by any motive hostile to plaintiff.
The verdict, we are all agreed, was too large in any view of the case. It was enhanced no doubt by the erroneous charge that appellant might be held liable, if liable at all, for everything that was done by the police or the city magistrate after the arrest, including the erroneous arraignment of plaintiff
The judgment and order' appealed from should be reversed and a new trial granted, with costs to appellant to abide the event. '
Ingraham, P. J., concurred.
Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce verdict to $1,000, in which event, judgment as so modified and order affirmed, without costs. Order to be settled on notice.