211 A.D. 443 | N.Y. App. Div. | 1925
Defendants are husband and wife, and at the time hereinafter mentioned plaintiff was the employee of defendant William P. Morgan. In May, 1921, defendants moved their household goods from one house to another in the city of Buffalo, plaintiff assisting in the work. About two months thereafter the house into which the goods had been moved was burglarized a^id some liquor stolen. The police were informed and after various conferences and transactions plaintiff was taken into custody without a warrant by police officers, held at a police station in Buffalo for several hours and then released. In an action for damages for false imprisonment plaintiff has recovered a verdict for $850 against both defendants and they appeal. Defendants admit that there was a false arrest and make no claim of justification through probable cause. The matter of punitive damages is not in the case, it being conceded that the damages awarded were all compensatory. The only questions before us are: (a) Did either defendant or both defendants instigate the arrest? (b) Are the damages excessive?
To warrant a judgment for plaintiff in an action for false arrest it must appear that the defendant either wrongfully and without warrant of law arrested the plaintiff himself or caused it to be done by another. When the taking into custody is caused indirectly, the defendant may be found hable if he has expressly ordered it, or, for example, if he “shows undue zeal” (Vitterio v. St. Regis Paper Co., 202 App. Div. 775), or been “ active and officious ” (Hewitt v. Newburger, 141 N. Y. 538, 543) in bringing about the arrest.
In the instant case there is testimony to the effect that the defendant Mary A. Morgan accompanied the police officers to her husband’s office; that in the presence of the police she shook her finger at the plaintiff and told him to confess; that she told the police to “ take him [plaintiff] away; ” said that “ we got the goods on you,” and to “ take me [plaintiff] out; ” that “ they [the police] would make me [plaintiff] talk down there; ” said in the presence of a number of people she “ was sorry that I [plaintiff] would steal that whiskey; ” that she “had clairvoyant powers and that she saw me
As to defendant William P. Morgan the facts are different. While he reported the burglary to the police and told them where they could find plaintiff and was present during a part of the transactions at his office, plaintiff admits that said defendant did not say anything there. He did not accompany plaintiff to the police station. While he was at the police station for a short time in the middle of the afternoon, it is not claimed that he gave any directions or saw any assaults; and his claim is not denied that around five o’clock p. m. he told the officers that he had no charges against plaintiff, that he never asked them to hold plaintiff and that he requested the officers to let him out. This falls far short of being sufficient to hold William P. Morgan liable as a participant in or an instigator of plaintiff’s arrest. Tanzer v. Breen (139 App. Div. 10) is in point. In that case defendant was State Superintendent of Elections. He went so far as to direct his deputy to lay an information against plaintiff and to present a third person’s affidavit to the magistrate. The latter issued a warrant which was held void because the statements in the basic paper were on information and belief only; and the defendant was discharged. In an action for damages for false arrest the complaint was dismissed.
Plaintiff intimates that the defendants were engaged in a joint enterprise or that the wife acted both for herself and as agent for her husband. There is nothing in the circumstances developed or in the situation, including the fact that defendants are husband and wife, to warrant any such conclusion.
There is complaint as to the amount of compensatory damages awarded. There is no precise measure in cases like this. It is the rule that the estimate of damages by a jury will not be disturbed on appeal unless the verdict is so excessive as to indicate that the jury were influenced by prejudice, passion or the like. Plaintiff was taken down into the lobby of one of Buffalo’s main office
As to defendant Mary A. Morgan, the judgment should be affirmed, with costs; and as to defendant William P. Morgan, it should be reversed and the complaint dismissed, but without costs.
As to the defendant Mary A. Morgan, the judgment and order are affirmed, with costs. As to the defendant William P. Morgan, the judgment and order are reversed on the law and facts, and the complaint is dismissed as to him, without costs.
