26 N.Y.S. 408 | N.Y. Sup. Ct. | 1893
The complaint contains a count for false imprisonment, and also one for malicious prosecution. On the trial the judge submitted to the jury the issue raised by the pleadings as to malicious prosecution, but held that the plaintiff was not entitled to recover for the alleged false imprisonment, and withdrew the issues raised by the pleadings in that regard from the jury. The plaintiff excepted to this ruling of the trial judge, and that exception raises the only question in the case.
On the complaint of the defendant, plaintiff was arrested and imprisoned on a warrant issued by one Rulison, a justice of the peace of Fultonville, Montgomery county. The following is the affidavit on which the warrant was issued:
“Montgomery County—ss.: Charles Rickard, of said county, being duly sworn, says that on the night of October 24, 1891, at the village of Fulton-ville, town of Glen, said county, his store was burglarized by breaking the large glass in the front door, and entered, and goods taken therefrom, to wit, two or more revolvers, and a quantity of cigars, and deponent believes, and has reason to believe, that store was broken into and burglarized by James H. Swart and Wallace Van Evera and another, from the fact that said parties were about that time, i. e. after one o’clock that night, prowling around and near the premises. Wherefore deponent prays that process issue to arrest the said offenders. Charles Rickard.
“Sworn before me this 21st day of Nov., 1891. H. H. Rulison, J. P.”
It is urged by the appellant that this affidavit was insufficient to give the justice jurisdiction of the person of the plaintiff, and that hence defendant, who caused his arrest under the warrant, was liable in an action for false imprisonment. We think the affidavit was insufficient to justify the issuing of the warrant. It sufficiently shows the commission of a crime, but fails to allege ■any fact showing the guilt of the plaintiff and Van Evera. The ■allegation that defendant believes, and had reason to believe, that his store was burglarized by said parties, does not establish, or tend to- establish, the charge. The reason stated by defendant for his belief, that said parties were about the time prowling around and near said premises, is not a statement of any fact indicating their ■guilt. At the most, the affidavit shows on the part of defendant ■a suspicion of, and perhaps grounds for such suspicion against, the plaintiff. The case is not unlike that of Blodget v. Race, 18 Hun, 132. In that case Justice Bockes says, (page 133:)
“But, before a warrant can lawfully issue for the arrest of the offender,'the magistrate must have some evidence of his guilt. Facts and circumstances •stated on information and belief only, without giving any sufficient grounds ■on which to base- the belief, are insufficient to confer jurisdiction as to the person. The magistrate must have evidence of probable cause, both as to the commission of the offense and the guilt of the offender, before he can ¡have jurisdiction to cause the arrest.”
MAYHAM, P. J., concurs. HERRICK, J., dissenting.