Thorne v. Turck

| New York Court of Common Pleas | Jan 4, 1882

Beach, J.

[After stating the facts as above.]—Under the circumstances, there is no ground for complaint by the defendant, from the refusal of the learned judge at trial term, to dismiss the complaint, as to the second cause of action. That was for malicious prosecution, and the jury found for the defendant. It was so distinct from and independent of the first ground of complaint, that the defendant could not have been prejudiced by its submission to the jury, if erroneous, or aided by its dismissal, had such course been proper. Under the ruling of the court, the jury were called upon only to assess the plaintiff’s damages by reason of the false imprisonment, and could not have been affected in the performance of the simple duty, by any disposition made of the motion to dismiss the second cause of action.

The question presented by the other branch of the case is of more difficulty. The learned judge in the court below held the offense, from which the defendant suffered, and for which the plaintiff was arrested, not to have been a felony. By this disposition the issue of reasonable grounds existing for the defendant to have the plaintiff arrested was eliminated from the case, and the jury had but to assess the plaintiff’s damages. To make reasonable grounds or probable cause a defense, it was needful a felony should have actually been committed.

I think the offense charged upon the plaintiff was the obtaining of property by false pretenses, and was not a larceny. The distinction between the two, is, in the first, the person intends to part with his title, and does not, in the second. The cases hold that where by trick or artifice the owner is induced to part with possession of property for a special purpose, to one who receives the same animo furandi, the owner still intending to retain the right of property, its appropriation by him to his own use is larceny (Weyman v. People, 4 Hun, 511; Macino v. People, 12 Hun, 127; Loomis v. People, 62 N. Y. 322). In these cases, there was a mere parting with the temporary possession of property with clear intention for its specific return or that of its proceeds. This was wanting in the case at bar. The defendant had no idea of a return of the five dollar note, and nothing indicates a design on his part to give the party who received it a temporai'y possession, looking for its return after some specific purpose was accomplished, and such possession thereby ended. It is urged, the money was given for a specific purpose, to wit, the payment of expenses. This is true, yet still not the specific purpose meant by the adjudications. That is one which attaches to the. disposition as indicative of the intention under which delivery is made, as, for instance, a deposit of money for safe keeping, to be returned, or the surrender of goods for exhibition by the receiver to a customer, with an understanding for their return if not sold, or of the proceeds if disposed of. The person to whom the defendant gave the five dollars received title, and could dis¡30se of it as he saw fit. His statement of wishing it to pay expenses was part of the misrepresentation inducing the defendant to pay it over, and not a qualification of the delivery.

The plaintiff was therefore charged with having obtained the money by false pretenses. This offense is not a felony at common law or made so by statute. The statutory definition of that term is restricted in terms to its use in the statute. This question was distinctly passed upon by the court of last resort in Fassett v. Smith (23 N.Y. 252" court="NY" date_filed="1861-06-05" href="https://app.midpage.ai/document/fassett-v--smith-3584766?utm_source=webapp" opinion_id="3584766">23 N. Y. 252), and must be considered res adjudioata.

The jury rendered a verdict in plaintiff’s favor for fifteen hundred dollars. The proof shows him to have been taken from 1ns hotel and confined in the police station from the afternoon of November 3d to the morning of the 6th. At least three times he was taken to and from the court, and though formally discharged, the defendant on this trial testified to an existing belief of his criminality, while his fellow clerk swore without qualification to his being in his employers’ office, at the time the offense was committed. Even under these circumstances I am of opinion that the damages are liberal, but not excessive, in the light of having been awarded”under an effect produced by passion, prejudice or other undue influence.

The judgment and order should be affirmed with costs.

Van Hoesen, J.

The defendant was not .prompted by malice. He acted upon information on which he had a right to rely ; and conceding that that information was incorrect, he should not have been mulcted in exemplary damages. Compensation should have been awarded to the plaintiff, but nothing more. I hardly think the damages were estimated on that principle. There is, I apprehend, some reason to believe that the jury were induced to punish Turck for what he did. As I am not able to say with certainty, however, that the verdict was grossly excessive, or the result of passion or prejudice, I shall concur in the conclusion stated by Judge Beach (Leeman v. Allen, 2 Wils. 160 ; Edgell v. Francis, 1 Mann. & G. 222; Creed v. Fisher, 9 Exch. 472).

Judgment and order affirmed, with costs.