| New York Court of Common Pleas | Nov 7, 1892
Plaintiff, a plumber acting under the authority of a permit issued to him by the commissioner of public works, proceeded to excavate the street and roadbed in front of the premises 393 Seventh avenue, in the
It was conceded on the trial that the arrest was in each instance without a warrant, and defendant contended that it was made by the officer in whose immediate presence the alleged misdemeanor was committed, and not at the request or instigation of its agents .or servants; also that the conviction of plaintiff in the police court was evidence of his guilt.
The learned trial judge ruled that the police justice was without jurisdiction, and the pretended con viction of no effect. Of the propriety of this ruling there can be no question, since police justices possess only such powers as are specially conferred by statute, (Code Crim. Proc. § 74,) Laws 1881, c. 442; and misdemeanors committed in the city and county of New York must be tried and determined in the court of special sessions, unless the case is directed to be tried in the court of general sessions, (section 74.)
It remained, therefore, on the trial, to ascertain whether the offense was in fact committed, and whether the arrest was instigated by defendant’s agents or servants, or was made by the police officer acting upon his supposed authority. Plaintiff testified that he was first arrested upon the direct request of defendant’s time keeper, Seymour, to Officer Buchanan, that he be taken into custody upon the charge then and there made. The officer, called as a witness for the defendant, corroborated this. The second arrest, plaintiff said, was made upon the complaint, and at the request, of defendant’s road master, Dow, and this was wholly uncontroverted. There was also ample evidence to show that the sewer connections could not have been repaired without making the excavation, and that temporary interference with the passage of defendant’s cars was unavoidable with the exercise of due care on the part of plaintiff and his workmen. The jury were therefore justified in concluding that there was no willful obstruction of defendant’s railway, and that the arrest and imprisonment were caused and instigated by its agents or servants.
No offense having been committed in the officer’s presence, or at any other time, he had no authority to" arrest without a warrant, (People v. Pratt, 22 Hun, 300,) and was amenable to an action for false arrest and imprisonment, (Boyleston v. Kerr, 2 Daly, 220" court="None" date_filed="1867-06-15" href="https://app.midpage.ai/document/boyleston-v-kerr-6140001?utm_source=webapp" opinion_id="6140001">2 Daly, 220.) The acts of defendant’s servants in causing the arrest, though tortious, having been committed within the scope of their employment, were imputable to defendant, (Fishkill Sav. Inst. v. National Bank of Fishkill, 80 N.Y. 162" court="NY" date_filed="1880-02-24" href="https://app.midpage.ai/document/fishkill-savings-institution-v-national-bank-3626280?utm_source=webapp" opinion_id="3626280">80 N. Y. 162;) and it was therefore liable to plaintiff as tort feasor for the damage caused by his wrongful arrest, jointly with the officer making it, or severally, at plaintiff’s election.
Evidence that the arrest was made from malicious motives, or without probable cause, was not required to sustain the action, though malice could be shown to aggravate the damage. Marks v. Townsend, 97 N.Y. 590" court="NY" date_filed="1885-01-20" href="https://app.midpage.ai/document/marks-v--townsend-3606170?utm_source=webapp" opinion_id="3606170">97 N. Y. 590, 597. In an action for false arrest and imprisonment, however, the recovery of punitive or exemplary damages does not depend upon the existence of malice