180 A.D. 848 | N.Y. App. Div. | 1917
Inasmuch as the officer made no attempt to arrest, and all went voluntarily to see the police captain, there was no arrest or imprisonment. Had the officer exhibited a warrant, or if he asserted that he would arrest plaintiff, a submission to such a show of force might raise a question for the jury. (Searls v. Viets, 2 T. & C. 224.) Here the officer heard both sides, and made a suggestion to refer the issue to the captain, which was assented to by all going to him. Hence, there was no cause of action for false imprisonment.
The facts were not in dispute. The servants of defendant,
This case is extraordinary in this: That the trial of the civil action has shown the same facts as were passed on by the magistrate. The magistrate’s commitment is a finding of sufficient cause to require holding the accused; hence it is prima facie evidence of probable cause in a subsequent action for malicious prosecution. (Schultz v. Greenwood Cemetery, 190 N. Y. 276.) Where the facts are undisputed, this question of probable cause is for the court. (Rawson v. Leggett, 184 N. Y. 504.)
The learned court at Trial Term having to rule on the issue of probable cause, was confronted with this prima facie effect of the fact of this commitment. Usually, such prima facie case is met by evidence which had not been before the magistrate, tending to show want of probable cause, or that the prosecution was inspired by malice. WTien plaintiff rested, this prima facie evidence, standing as it did unopposed, required the court, as a trier of that issue (McCarthy v. Barrett, 144 App. Div. 727), to dismiss the complaint.
Therefore, the judgment and order should be affirmed, with costs.
Present — Jenks, P. J., Stapleton, Rich, Putnam and Blackmar, JJ.
Judgment and order unanimously affirmed, with costs.
