Art. 10. Defenses. ARTICLE X. DEFENSES. SUBDIVISION 1. Want of probable cause 2. Lawful authority and justification 4. Arrest by agent 5. Defense of person or property 6. Detention not terminated 7. As to advice of counsel SUBDIVISION 1. Want of Probable Cause. For various cases involving the defense of probable cause, see authorities cited under previous articles. The right to arrest without a warrant depends upon the relation of the attending circumstances to the specific question. There can be no general right to arrest citizens for an undisclosed offense. The statute requires the officer to inform the arrested person of his authority and the cause of his arrest, except where the person arrested is arrested in the actual commission of the crime. A man cannot be arrested for one cause and when that fails the defendant justify his arrest for another cause. So held, where the plaintiff was arrested on suspiction of having in his possession jewelry, not belonging to him, and such charge was made against him. On his examination at the headquarters, it was found that he was carrying concealed weapons, which is a misdemeanor. It was held that the arrest for the first cause could not be subsequently justified on the latter grounds. Snead v. Bonnoil, 49 App. Div. 330, 97 St. Rep. 553, 63 N. Y. Supp. 553, affirmed 166 N. Y. 325. See Savage v. McMillan, 37 App. Div. 103, 55 N. Y. Supp. 1055, for a case where it was held that no probable cause was proven. A contractor engaged to tear down a public building was, by his contract, to have the benefit of the materials. While disposing of such material he was arrested on charge of grand larceny, preferred by superintendent of public parks. It was held that, under the circumstances, no probable cause was shown, and that the plaintiff was entitled to recover, the only question for the jury to consider being that of damages. Art. 10. Defenses. In order that probable cause be a defense in an action for false imprisonment, it is needful that a felony should have actually been committed. Thorne v. Turck, 13 Week. Dig. 550. The absence of probable cause must be averred and proved. Hawley v. Butler, 54 Barb. 490. Where an arrest is made by a private person, probable cause or grounds for suspicion afford no justification unless a felony has been actually committed, and the burden of proving the commission of a felony is upon the defendant. Burns v. Erbin, 40 N. Y. 466. Where a private person seeks to justify an arrest or aiding in the arrest of another without warrant, on a criminal charge, it must appear that a felony had been committed and that he acted circumspectly, and upon grounds which would have justified a careful and prudent person in believing that the person arrested was guilty of the crime. The burden is upon him to show that the circumstances justified the situation, and if this is made to appear, he is not liable, although the accused was in fact innocent. Farnam v. Feeley, 56 N. Y. 453, citing Holley v. Mix, 3 Wend. 354; Brackett v. Eastman, 17 Wend. 32; Carl v. Ayres, 53 N. Y. 14; Addison on Torts, 555. SUBDIVISION 2. Lawful Authority and Justification. Where a warrant, under which an arrest was made, shows a case which comes within the jurisdiction of a justice issuing it, although it does not recite a legal offense, the officer is protected in acting under it, and it is error to refuse a nonsuit. Smith v. Warden, 4 Hun, 787. A person has no right to arrest a mere trespasser who offers no violence, and is liable for false imprisonment for such an arrest. Midford v. Kann, 32 App. Div. 228, 52 N. Y. Supp. 995. For cases where it was held that an assistant clerk of a police magistrate was justified in removing a person from the courtroom on his own responsibility, see Hopner v. McGowan, 116 N. Y. 405. Where the defendant was sued for imprisoning the plaintiff under an attachment which had been set aside, it is sufficient to show that the order setting it aside was not legally made. Lewis v. Penfield, 39 How. Pr. 490. Nor will false imprisonment lie where the process was irregular, Art. 10. Defenses. if it is merely set aside upon other grounds. Nebenzahl v. Townsend, 61 How. Pr. 353. An action can only be maintained where the arrest was unlawful and without authority of law, and if the complaint and affidavits show that the arrest was lawfully effected, a nonsuit should be granted. Warren v. Dennett, 13 Misc. Rep. 329, 34 N. Y. Supp. 462, 68 St. Rep. 366. For a case where the defendant was held to be justified in causing plaintiff's arrest for failing to return a horse and wagon, hired of the defendant, see Olmstead v. Dolen, 25 St. Rep. 634, 6 N. Y. Supp. 130. An arrest made upon a void warrant cannot be justified as an arrest for a different cause. Murphy v. Kron, 20 Abb. N. C. 259. A criminal conviction of the plaintiff by a police justice having no jurisdiction is no evidence of his guilt, and thus is not a defense in an action for false imprisonment. Kolzern v. Broadway, etc., Ry. Co., 1 Misc. Rep. 148, 48 St. Rep. 656, 20 N. Y. Supp. 700. An action for false imprisonment was held not to lie where it appeared that the arrest had been made on the ground that the plaintiff obtained goods upon false pretenses as to his responsibility, and where it appeared that to obtain such goods the plaintiff had represented himself as controlling considerable amount of property, and yet within four months thereafter had failed for a large amount, owing bills contracted prior to the failure. Moses v. Dickinson, 2 City Ct. 184. In an action for false imprisonment justification must be spe cifically alleged. Brown v. Chadsey, 39 Barb. 253. SUBDIVISION 3. Consent of Plaintiff. In Warren v. Dennett, 17 Misc. Rep. 88, 39 N. Y. Supp. 830, it was held that where the plaintiff was arrested by the defendant for refusing to pay ten cents extra in a restaurant, but paid the same at the police station, that if it was a voluntary payment and a settlement of the difference, that then the plaintiff could not recover; but if it was brought about by fear, threat, coercion, and duress, then the defendants were liable, and where the evidence upon this point is complicated, it is a proper question for the jury. Art. 10. Defenses. It is no defense to an action against the officers of a bank that a person was imprisoned by the locking of the doors at the usual time, although he knew the time at which the bank usually closed. Woodward v. Washburn, 3 Den. 369. Where a person was arrested for hawking, in violation of a village ordinance, and though first pleading not guilty to the charge, paid the fine imposed, it was held that such plea, together with the payment of the fine, etc., effectually barred the action on his part for false imprisonment. Jones v. Foster, 43 App. Div. 33, 59 N. Y. Supp. 738, citing Cuniff v. Beecher, 84 Hun, 137, 32 N. Y. Supp. 1067; Robbins v. Robbins, 133 N. Y. 597; Oppenheimer v. Manhattan Ry. Co., 45 St. Rep. 134, 18 N. Y. Supp. 411. For defenses founded upon the theory that there was no compulsion, and that the plaintiff voluntarily submitted to the imprisonment, see cases cited under "Elements Necessary to False Imprisonment - Compulsion Necessary." SUBDIVISION 4. Arrest by Agent. A recovery for false imprisonment obtained against a detective who verified an information prepared by the district attorney, embodying the results of his investigation, was reversed upon the ground that the application for such warrant was not really made by the detective, but by the district attorney, in his official capacity. Whitney v. Hanse, 36 App. Div. 420, 55 N. Y. Supp. 375. A railroad company has been held not to be bound by the unauthorized arrest, in its station, of one not a passenger, which arrest was made by a railroad detective. Such arrest was not within the of his authority. Penny v. N. Y. C. & H. R. R. R. Co., 34 App. Div. 10, 53 N. Y. Supp. 1043. scope The question as to the liability of one partner for the false imprisonment, caused by another, is considered by the court in Farrell v. Friedlander, 63 Hun, 256, 18 N. Y. Supp. 215, where the court said that there is a line of cases which go to the length of holding the joint liability of partners, as stated in Abbott's Trial Brief, p. 217, as follows: "If the act itself was one within the scope of the business and done as such, then it is not material that the other partners were ignorant and innocent, nor that it was willful; otherwise if the act was wholly foreign to the business. Art. 10. Defenses. If the act was presumptively a partnership act, because, though not in the line of the trade, it was incidental to the exercise of an implied power as where a partner in collecting a debt due the firm directs an officer to make a tortious levy then the act of one partner is presumptively that of all, and evidence that they, with knowledge of the facts, received the benefits of it, is conclusive against them." The court says, however, that the principle underlying the liability of one partner for the tort of another is governed by the principles of law of agency, and like the liability of a master for the tortious act of his servant is confined within the limits of the implied authority with which each partner is invested by virtue of the partnership relation. * "I can find, however, no case which goes to the extent of holding that the malicious prosecution of offenders has been admitted to be within the power constructively delegated to one partner as the agent of another." See this case for a full discussion of the subject. * * See Mulligan v. N. Y. & R. B. Ry. Co., 129 N. Y. 506, reversing 39 St. Rep. 20, 14 N. Y. Supp. 456, where it was held that a railroad corporation was not liable for an arrest by its servant upon the ground that it was not shown that the servant was acting within the course of his employment at the time. Earl and Finch, JJ., dissenting. For a case where the defendant was held not to be liable for an arrest caused by its general superintendent, where a special agent was employed in that particular line of business, see Lubliner v. Tiffany & Co., 54 App. Div. 326, 100 St. Rep. 659, 66 N. Y. Supp. 659. Where a passenger had left the wharf of the defendant steamboat company and was followed by the purser, defendant's agent, and told to come into the waiting-room, where the purser locked the door and investigated the contents of a satchel,- Held, that the act of the purser was not within the scope of his authority, and no action for false imprisonment could lie against the defendant company. McKay v. Hudson River Line, 56 App. Div. 201, 67 N. Y. Supp. 651, 101 St. Rep. 651. SUBDIVISION 5. Defense of Person or Property. One in peaceable possession of land is not liable for false imprisonment in causing the arrest of a person who interferes forcibly with such possession. Coogan v. McArdle, 1 Rob. C. C. 231. |