14 Misc. 121 | City of New York Municipal Court | 1895
■ This action is brought by, the plaintiff against the defendant to recover the sum of $2,000 as damages for trespass and injury to his person, etc. The 'complaint sets forth four distinct and separate causes of action, viz.: (1) Trespass, (2) assault, (3) false imprisonment, (4) malicious prosecution.
The first cause of action charges the defendant, who is a police officer, with trespass, in that on or about July 5, 1895, he unlawfully, willfully, illegally and maliciously forced in
' The secqnd cause of action charges the defendant with having assaulted the plaintiff without justification or provocation after forcibly entering the said premises as charged in the first cause of action.
The third cause of action charges the defendant with having unlawfully and forcibly entered plaintiff’s said premises at the time above stated, and, after assaulting the plaintiff without cause or justification and without charging him with any offense, took him by force into custody and caused him to be imprisoned without any cause or without any right.
The fourth cause of action charges the defendant with having falsely and maliciously, and without, reasonable or probable cause, charged the plaintiff before a city magistrate with having committed the offense of assault and procured the said magistrate to entertain said complaint and detain the plaintiff on the said charge; that the plaintiff was put under arrest, and after an examination had was acquitted of the crime, and that the prosecution is wholly ended and determined. That by reason of the premises the plaintiff suffered damages in the amount claimed by him.
The defendant, 'however, by way of' defense'has interposed an answer admittingxthat he is a police officer, and that, whilst in uniform at or about the time stated in the complaint, he arrested the plaintiff, caused him to be imprisoned, and that, after examination had upon the charges preferred by him against the plaintiff, the plaintiff was acquitted, and that the ■ prosecution is wholly determined, but. he denies the several charges made against1 him, and by way of a separate and distinct answer and defense to each and every cause of action alleged in the complaint, he avers that he is and for a long time has been a police officer, and, as such, was under orders from his superior officers to enforce the provisions of the excise laws, to prevent violations and arrest violators thereof; that early in the morning of July ninth, between the hours of one and five o’clock,lie observed persons going in and out of Ko. 13.
To the matters thus set up by way of a separate and distinct defense the plaintiff demurs upon the ground that the same are insufficient in law upon the face thereof. ‘
The several charges or either of them as made by the plaintiff, if true, would render the defendant amenable to an action for damages. Ho officer has a right to force an entrance into any premises for the purpose of effecting an arrest for a misdemeanor which he may have reason to suspect is being committed thereon. Hor is he authorized to make an arrest without a warrant for a misdemeanor- not committed in his
The defendant, however, as above shown, specifically denies each of the several charges made against him.. The issues thus raised must necessarily be tried before the court and .a jury in the orderly course of procedure.
The questions to.be determined by the court at present arise upon the demurrer interposed by the plaintiff! to the special or 'separate defense set up by the defendant in his answer, by which he shows that he. peaceably entered plaintiff’s premises for the purpose of effecting an arrest for a violation of the Excise Law, which offense he had reason to believe Was being committed, and that he was assaulted without just causfe by the plaintiff whilst endeavoring to -make such an arrest, and that by reason thereof he was led to apprehend the plaintiff for interfering with him in the discharge of his duties as an officer and for assaulting him, and the charges subsequently made against the plaintiff-and-his consequent imprisonment were reasonable and just, and made in good faith and with reasonable and probable cause, and that they were made for the sole purpose of preserving the public peace and in conformity with law. The plaintiff by demurring admits the above facts alleged by way of separate defense, but it is urged by him that the same do not constitute a justification or defense.
Upon a careful examination of the pleadings and the questions of law involved I am of the opinion that the facts set up by way of special defense, to which plaintiff has demurred, constitute a complete justification of defendant’s acts in arresting the plaintiff for the assault committed upon him, and for interfering with him in the discharge of his duties as an officer, and that the same are properly and necessarily pleaded as a defense. See Bradner v. Faulkner, 93 N. Y. 515.
Ordered accordingly.
