118 N.Y.S. 257 | N.Y. App. Div. | 1909
This is an action for false arrest and imprisonment and for malicious prosecution. Upon the trial no question Was raised with •respect to the right of the plaintiff to join the two causes of action, nor was any objection taken to their being combined in' one count in the complaint; but after the denial of a motion made by the defendants in the alternative for the dismissal of the complaint or for the direction of a verdict and after an adjournment of the court for tlie purpose of submitting the case to the jury, counsel for the defendants moved that the plaintiff be compelled to elect “whether she is proceeding' on the theory of a false imprisonment or malicious •prosecution.” ' The court denied the motion, and an exception was duly taken, which is now urged as ground of reversal.
Causes of action for false arrest and imprisonment, and for malicious prosecution arising out of the same transaction, are not necessarily inconsistent, and rnay,xtherefore, be joined in one complaint. (Marks v. Townsend, 97 N. Y. 590.) They are, however, separate causes of action and in conformity, to the requirements of the Code of Civil Procedure, (§ 483) should be separately stated and numbered. That objection, however, is waived unless presented before the trial of the action. - The court submitted the case to the jury on a charge which, taken as a .whole, would allow a recovery both for false arrest and imprisonment and for malicious .prosecution, but did not point out for the guidance of the jury the distinction'
The magistraíé held the plaintiff in $100 bail and she was detained in a cell, the location of which is' not given in the record. Doubtless this was pursuant to formal commitment made by the magistrate on the preliminary hearing or arraignment after she pleaded not guilty. After having been confined in this cell from three o’clock in the afternoon of the day she was arrested, which was Friday, until seven o’clock in the morning of the following Monday, she was taken in a police wagon with other prisoners to the Tombs, and there detained until four o’clock in the afternoon, when she was ■ bailed out. Evidence descriptive of the cells in' which plaintiff was confined and of her treatment while in custody, including the transfer from one prison to another and her arraignment and. trial, was received. This bore upon the damages recoverable for malicious prosecution but not for false arrest and imprisonment, but the court was neither requested to limit it nor to. instruct the jury with respect to its bearing on the respective causes of action. If the plaintiff committed, the crime of petit larceny there is no evidence that either of the appellants saw her' commit it. The arrest, therefore, was unlawful. The evidence sufficiently shows that the authority to make, the arrest was within the implied, if not. express, authority conferred upon the appellant Rosenberg by the firm, and there is evidence that the members of the firm approved .of the course' which he took, aiid that one of them was present when he' made the charge against the plaintiff and delivered her to the police officer. Both appellants, therefore, were liable for causing the arrest of the plaintiff without a warrant for a misdemeanor which was not committed in their presence. Their liability, however, on a cause of action for false arrest and imprisonment terminated, I think, with the arraignment or preliminary hearing before the magistrate, who as a judicial officer decided that the verified complaint sufficiently charged the plaintiff' with a crime, and duly held her thereon, and, as already stated, presumably formally committed her in default of bail, for the imprisonment from that time on was by due process of law, and for it, although the original arrest was illegal and caused by the appellants, I think they are not responsible in damages in an action for false arrest and imprison •
It is not questioned but that the complaint charged a cause of action for false arrest and imprisonment, and this .evidence relating thereto was submitted to the jury under proper instructions, warranted the verdict for those wrongful acts alone regardless of whether the cause of action for malicious prosecution was well founded. The court in the main .charge only .submitted, 1 think, the question of the liability of the defendants for malicious prosecution., although the nature of the cause of action is not character-' ized. The jury , were instructed that the principal question for them to consider was whether or not ¡Rosenberg acted with probable cause. On the issue of false arrest and imprisonment there was no question of probable cause, the arrest having been made by a citizen and not by a peace officer. (Code Crim. Proc. §§ 177, 183.) The facts which in a proper case would bear upon the question of probable cause might become material on the question of exemplary or punitive damages in an action for false arrest and imprisonment, but the court did not leave any question of such damages to the jury. The court did, however, by the charge as made and remarks made in refusing to charge at the close of the charge in chief, clearly leave the question of false arrest and imprisonment to the jury as well as the question of malicious prosecution, but did not instruct the jury with respect to the evidence which bore and was to be considered upon each of the causes of action or with respect to limiting the damages for the false arrest and imprisonment to those caused by the acts occurring prior to the commitment by the magistrate. ¡No question, however, in regard was raised by either appellant and no suggestion was made to the court with respect to further instructing the jury on this point. It was assumed upon the trial, as is manifested by the motion to require the plaintiff to elect, that the complaint sufficiently stated a cause of action both for malicious prosecution and for false arrest and imprisonment. Under the rule, therefore, which confines an appellant to the theory upon which the cause was tried we are not required to pass upon this question. The
Ho exception has been drawn to our.attention presen ting reversible error, and. we are of opinion that the judgment and order should be affirmed, with costs. , '
Ingraham, McLaughlin, Clarke and Houghton, JJ.,.concurred.
Judgment and order affirmed, with costs. .