99 N.Y.S. 969 | N.Y. App. Div. | 1906
Lead Opinion
Each defendant demurs to the- complaint on the ground {in' so many words) that" four separate causes of action for false imprisonment, one against each defendant, are improperly united. It is claimed that it alleges,the.doing of four different torts, one by each defendant, instead of bnly one tort by them all. Each also demurs that the complaint does not state facts sufficient to constitute a cause of action against him.
The complaint is for, a false arrest and imprisonment; or, to be
The facts alleged are in substance (1) that the defendant Sclieibel, a policeman, arrested the plaintiff without a warrant in the city-of Yonkers for hawking without a license, whereas he had a license, and took him to-the station house; (2) that the defendant Lent, the sergeant in charge of the station house, locked him up; (3) that the defendant Woodruff, the captain and commander of the police force, was sent for and informed by the plaintiff, of the said facts of his false arrest and imprisonment, but refused to discharge the plaintiff, and detained him all night; and (4) that the defendant Cooley,-.a sergeant of police, took the plaintiff, out of his cell- to .-another room-next morning and “abused” him (how is not stated) and then remanded him to his cell. At the end there is an allegation that the acts of the defendants were “ wilful and concerted,” etc-., but that does not make the action one for a conspiracy, i. e., it is not necessary to make out a conspiracy to maintain.it.
It is elementary that every one who participates in the .commission of a tort is liable for it as a principal. If one is committing», a battery, and another come up and join him in the battery, both" are liable for the whole battery. The plaintiff is not obliged-to divide the battery into parts and sue each for a part. It was not necessary that all of the defendants should have been present at the commencement of the false imprisonment, viz., at the arrest. By after-wards joining in the unlawful imprisonment those not present at the Beginning became liable for the whole trespass ab initio. There was one continuous trespass only, and not several - trespasses. If an.officer falsely arrests a person and -starts with him to the station house, every, officer or other person who joins with- him in the tort at-successive. intervals, and places on the way, and the officer in .charge at the station -house who receives, the arrésted person from -them and locks him -up,.- are :all participants - in the same tort, if liable for tort at alb which .has to be determined on the evidence at
It follows that the complaint alleges only one cause of action against the three defendants Scheibel, Lent and Woodruff. It states none against the defendant Cooley, and his demurrer was properly-sustained on that ground. The demnrrers'also allege a union of a cause of action for assault,against the defendant Cooley with one cause of action against all of the other defendants for conspiracy and malicious prosecution. Ho- such causes of action are alleged.
The interlocutory judgment should be reversed, except that it should be affirmed as to the defendant Cooley.
Hirschberg, P. J., Woodward and Miller, JJ., concurred; Rich, J., read for affirmance.
Dissenting Opinion
1 am unable to concur. The plaintiff brought this action against four defendants to recover damages alleged to have been sustained in consequence of their wrongful acts resulting in his arrest and temporary confinement in the police station in the city of Yonkers.
■The defendant Scheibel is alleged to be a police officer, who. arrested plaintiff for the violation of a city ordinance prohibiting the hawking and peddling of merchandise in the streets^ The defendant Lent is alleged to be a sergeant of police in charge of
The complaint alleges, in- separately numbered subdivisions, the separate act of each defendant, and that “ by reason - of the said joint and several acts of the several defendants, the plaintiff, from the hour of his said arrest-until about the hour-of nine a. m. on March-29, 1903, was wrongfully and unlawfully- deprived of his liberty and compelled to remain closely confined with"several other prisoners.” The 8th subdivision is as follows: “That as plaintiff is informed and believes, the acts of said defendants were wilful and concerted, and done either maliciously or knowingly in furtherance of some purpose, personal to one or more of said defendants.”
The defendants each demurred 15 the complaint- upon two grounds: First, that there was ah improper unity óf several causes of action, one being against the defendant Scheibel for false arrest or imprisonment on March 28, 1903, between the hours of seven and eight o’clock p. m. ; one against the defendant Lent for false imprisonment, at a later hour.; one against, the defendant Woodruff for continuing the imprisonment at a yet later hour, and one against the defendant Cooley for continuing the imprisonment on the next day, and for an assault, “ which said causes of action do not affect all of the said parties,” .and one cause of action for conspiracy and malicious prosecution as a, result, thereof. Second, that the. complaint does not state facts sufficient to constitute a cause of action. I think the disposition of these demurrers by the learned justice at Special Term was .correct. It is apparent that the theory of the plaintiff’s alleged cause, of, action is , a,,, conspiracy by and -between
To maintain an action for ■ conspiracy the plaintiff must -allege- and prove an agreement or concert of action of the defendants. In the complaint under consideration no facts are alleged showing an agreement or concerted- action in pursuance thereof by or between any of the defendants. The only relation shown between any of the acts is that they successively followed each other; , the ¡act of' .each defendant was separate and distinct' from that of each of the others; they are not so connected as to establish them to have been the result of any agreement'or concert of action, and are insufficient to constitute a.cause of action for a conspiracy. This condition is not relieved by the allegations contained in subdivision 8, which are only the conclusions of the pleader given without alleging any facts.
1 vote to affirm the interlocutory judgment, with costs.
Interlocutory judgment reversed as to the defendants Scheibel, , Lent and Woodruff, with costs to the appellants, and affirmed as to the defendant Cooley, with costs to the respondent.