Vernes v. Phillips
1935 N.Y. LEXIS 1373
NY
1935
Check Treatment
Crouch, J.

The action is for false imprisonment. The defendant is a practicing lаwyer. At the close of the plaintiff’s case a motion to dismiss the complaint was granted for insufficiency of proof. The trial judge held that аlthough the defendant had requested the police officers to arrest the plaintiff, “ he was speaking all the time as a mouthpiecе for the woman [his client] who stood there,” and, therefore, incurred nо liability. The judgment was unanimously affirmed.

The facts are, briefly, as follows: The plaintiff, together with his wife and daughter, were among the directors of a small corporation. The plaintiff had sent in bis resignation. The defendant, acting ‍​‌​‌​‌‌​​​​‌​‌​​‌​‌​‌​​‌‌​‌‌​​‌‌‌​​​​‌​​​​‌​​‌​​‍as legal adviser to the wife and daughter, was present at the meeting of the directors called to pass upon the resignation. It wаs reported at the meeting that plaintiff a day or two before “ had drawn out some money with two checks.” The defendant said “ that was the bеst thing he could have done for their side of the case; that he would look after the matter and see that Mr. Vernes would make good.” *300 Accordingly, five days later, the defendant went with the wife and daughter to a pоlice station and talked with two detective officers. The defendant did most of the talking. He said the plaintiff had stolen $275; that he drew some monеy that he was not entitled to and appropriated it to his own use. The officers understood that the defendant was “ counsel for Mrs. Vernes.” Thеy were told that “ they wanted Mr. Vernes arrested.” It was the defendant who made the request. He gave the officers a description of the plaintiff, the number of his automobile and the address where he could prоbably be found. The officers went to the address, arrested the plaintiff withоut a warrant and brought him to the station house where he was “ booked and finger-printed.” At that time the defendant said that “ Mrs. Vernes would make the cоmplaint in the Magistrate’s Court.” Several ‍​‌​‌​‌‌​​​​‌​‌​​‌​‌​‌​​‌‌​‌‌​​‌‌‌​​​​‌​​​​‌​​‌​​‍hours later the plaintiff was dischаrged under a writ of habeas corpus.

Any imprisonment which is not legally justifiable is a false imprisonment and subjects him who is responsible therefor, whether as principal or as agent, to an action in tort for damagеs. (Curry v. Pringle, 11 Johns. 444; Taylor v. Trask, 7 Cow. 249; Hunter v. Burtis & Ellsworth, 10 Wend. 358, 362; cf. American Law Institute, Restatement of the Law of Torts, § 35 et seq.) That he who is rеsponsible is an attorney at law does not change the ‍​‌​‌​‌‌​​​​‌​‌​​‌​‌​‌​​‌‌​‌‌​​‌‌‌​​​​‌​​​​‌​​‌​​‍rule. His privilеge does not cover the commission of trespass. “ It cannot be disputed but that an attorney who causes void or irregular process to be issued in an action, which occasions loss or injury to a party against whom it is enforced, is liable for the damages thereby occasioned.” (Fischer v. Langbein, 103 N. Y. 84, 89.) The rule is an ancient one (Barker v. Braham, 3 Wils. 368; Bates v. Pilling, 6 Barn. & Cress. 38), but still valid (Newberry v. Lee, 3 Hill, 523; Deyo v. Van Valkenburgh, 5 Hill, 242).

The question remains, however, as to when and under what cirсumstances a person may be said to have been *301 responsible for an imprisonment. In Hopkins v. Crowe (7 Car. & P. 373) it was said that if the defendant directed an officer to take the plaintiff into custody, he was liable for false imprisonment; but if he merely ‍​‌​‌​‌‌​​​​‌​‌​​‌​‌​‌​​‌‌​‌‌​​‌‌‌​​​​‌​​​​‌​​‌​​‍made his statement, leaving it to the officer to act or not as he thought proper, he was not liable. That distinction has been followed in this State. (Brown v. Chadsey, 39 Barb. 253; Burns v. Erben, 26 How. Pr. 273, 277; affd., 40 N. Y. 463.) Where an аttorney is the actor, the rule, though differently expressed, is not essentially different.1 It is said that if he acts officiously and beyond the scope of his duties as an attorney, he is hable for trespass. (Ford v. Williams, 13 N. Y. 577, 584; 24 N. Y. 359, 365.) He so acts when he requests or directs an arrest (Hunter v. Burtis & Ellsworth, 10 Wend. 358, 362), except, pеrhaps, in a case where he merely transmits the instructions of his client. (Ford v. Williams, supra.)

We are of the opinion that a prima facie case was made out, and that the plaintiff ‍​‌​‌​‌‌​​​​‌​‌​​‌​‌​‌​​‌‌​‌‌​​‌‌‌​​​​‌​​​​‌​​‌​​‍should not have been nonsuited.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Judgments reversed, etc.