
    Julia M. Gearity, Respondent, v. Harry Strasbourger and Charles Rosenberg, Appellants.
    First Department,
    July 13, 1909.
    Pleading —joinder of actions -A false imprisonment andmalieious prosecution—waiver of failure to separately state actions—false imprisonment — arrest without warrant by private citizen—parties —joint tort feasors — damages — when liability for false imprisonment terminates — evidence — appeal — waiver of defects in charge — verdict not excessive. 1
    
    Actions for false Imprisonment and-malicious prosecution arising out of the same transaction are not necessarily inconsistent and they may be joined in one • complaint. But, being separate causes of action, they should be separately stated and numbered.
    The objection that such actions, united in one complaint, are not separately stated and numbered, is waived unless taken before trial.
    Where a private citizen causes the arrest of another without a warrant on a charge of petit larceny, not committed in his presence, he is guilty of a false arrest as a matter of law, and in an action against him the only issue for the jury is the assessment of damages.
    Where the salesman of a department store caused an arrest for an alleged petit larceny not committed in his presence, and the members of the firm approved his course and were present when he made the charge and delivered the person arrested to a police officer, both the salesman and his employers are liáble for .the false arrest. ' '
    The liability for such arrest terminated, however, on the arraignment and preliminary hearing before the magistrate, if the latter, as a judicial officer, decided that the verified complaint sufficiently charged the crime and held the plaintiff thereon, for from that time the imprisonment was by due process of law.
    Hence, evidence descriptive of the cells in which the plaintiff was confined and . of her treatment while in custody, is irrelevant on the question of damages in ■ an action for false imprisonment, but is relevant in the cause for malicious prosecution.
    Although the court failed- to instruct the jury that such evidence was relevant ■ only in the cause for malicious prosecution which was united with one for false imprisonment, the error is not available upon appeal if defendant raised no objection and requested no further instruction
    In an action for false imprisonment there is nc question of probable cause where the arrest is made by a citizen and not. by a peace officer.
    An appellant is confined to the theory upon which the case was tried.
    Where the plaintiff, a respectable widow of mature years carrying on the business of a dressmaker, was arrested for shoplifting, was confined.in a cell from five o’clock Friday until seven o’clock in the morning of the following Monday when she was taken, with other prisoners, to the Tombs, and detained Until four o’clock in the afternoon, a verdict of §500 is not excessive.
    Appeal by the. defendants, Harry Strasbourger and another, from a judgment of the Supreme Court' in favor of the plaintiff, entered in the office of . the clerk-of the county of Hew York on the 22d day of June, 1908, upon the verdict of a jury for $500, and also from an order entered in said clerk’s'office on the 19th day of June, 1908, denying the defendants’ motion for a new trial made upon the minutes.
    
      Emanuel Eschwege, for the appellants.
    
      Henry L. Brant, for the. respondent.
   Laughlin, J.:

This is an action for false arrest and imprisonment and for malicious prosecution. Upon the trial no question Was raised with •respect to the right of the plaintiff to join the two causes of action, nor was any objection taken to their being combined in' one count in the complaint; but after the denial of a motion made by the defendants in the alternative for the dismissal of the complaint or for the direction of a verdict and after an adjournment of the court for tlie purpose of submitting the case to the jury, counsel for the defendants moved that the plaintiff be compelled to elect “whether she is proceeding' on the theory of a false imprisonment or malicious •prosecution.” ' The court denied the motion, and an exception was duly taken, which is now urged as ground of reversal.

Causes of action for false arrest and imprisonment, and for malicious prosecution arising out of the same transaction, are not necessarily inconsistent, and rnay,xtherefore, be joined in one complaint. (Marks v. Townsend, 97 N. Y. 590.) They are, however, separate causes of action and in conformity, to the requirements of the Code of Civil Procedure, (§ 483) should be separately stated and numbered. That objection, however, is waived unless presented before the trial of the action. - The court submitted the case to the jury on a charge which, taken as a .whole, would allow a recovery both for false arrest and imprisonment and for malicious .prosecution, but did not point out for the guidance of the jury the distinction' between the two causes of action, and where liability for the one terminated and for the other commenced, or the difference in the measure of damages in the two classes of actions. The attention of the court does not appear to have been drawn to this omission either by a request to charge or an exception to the charge as delivered. There appears to be on the facts presented in the record a cause of action as matter of law against both defendants for falsely arresting and imprisoning the plaintiff, and on that issue the only question for the jury would be the assessment of damages. The charge upon which the. plaintiff was arrested was a misdemeanor. The arrest was by a citizen not an officer. The firm of Steinhardt & Strasbourger conducted a department store at the southwesterly corner of Eighty-sixth street and Third avenue, and the appellant Rosenberg was a salesman in their employ, having charge of the gentlemen’s furnishings department and performing other duties in the nature of superintendence, which gave rise to his being spoken of and referred to by the employees as manager. On the 19th day of January, 1906, the plaintiff entered the store and purchased a spool of silk, for-which she paid cash, and which was delivered to her without being wrapped and which she carried in her hand. According to her testimony it was her intention after making this purchase, to buy a waist, and, with that end in view, she selected one from a table upon which waists were piled and there being no saleslady immediately present, she stepped toward the nearest counter with the waist on her arm for the purpose of paying for it and then discovered that she had lost her pocketbook which she had had a few minutes before when she paid for the spool of silk; that she turned to look for it on the floor and table, and at about this time she was charged by a saleslady with intending to steal the waist, and that notwithstanding her explanation as herein recited, the appellant Rosenberg, who had not been present, but was entering the store, and had been summoned, 2’equired her to accompany him to an upper floor of the building and there turned her over to the custody of a police officer, whom he summoned for that purpose. She was then taken before Magistrate Crane in the Magistrate’s Court for the first division, fifth district, where a formal verified complaint was made against her by Rosenberg, and she was evidently held for trial before the Court of Special Sessions, first division, for bail was fixed and she was tried in that court on the sixth day of March thereafter and acquitted. .

The magistraíé held the plaintiff in $100 bail and she was detained in a cell, the location of which is' not given in the record. Doubtless this was pursuant to formal commitment made by the magistrate on the preliminary hearing or arraignment after she pleaded not guilty. After having been confined in this cell from three o’clock in the afternoon of the day she was arrested, which was Friday, until seven o’clock in the morning of the following Monday, she was taken in a police wagon with other prisoners to the Tombs, and there detained until four o’clock in the afternoon, when she was ■ bailed out. Evidence descriptive of the cells in' which plaintiff was confined and of her treatment while in custody, including the transfer from one prison to another and her arraignment and. trial, was received. This bore upon the damages recoverable for malicious prosecution but not for false arrest and imprisonment, but the court was neither requested to limit it nor to. instruct the jury with respect to its bearing on the respective causes of action. If the plaintiff committed, the crime of petit larceny there is no evidence that either of the appellants saw her' commit it. The arrest, therefore, was unlawful. The evidence sufficiently shows that the authority to make, the arrest was within the implied, if not. express, authority conferred upon the appellant Rosenberg by the firm, and there is evidence that the members of the firm approved .of the course' which he took, aiid that one of them was present when he' made the charge against the plaintiff and delivered her to the police officer. Both appellants, therefore, were liable for causing the arrest of the plaintiff without a warrant for a misdemeanor which was not committed in their presence. Their liability, however, on a cause of action for false arrest and imprisonment terminated, I think, with the arraignment or preliminary hearing before the magistrate, who as a judicial officer decided that the verified complaint sufficiently charged the plaintiff' with a crime, and duly held her thereon, and, as already stated, presumably formally committed her in default of bail, for the imprisonment from that time on was by due process of law, and for it, although the original arrest was illegal and caused by the appellants, I think they are not responsible in damages in an action for false arrest and imprison • inent. (Newman v. N. Y., L. E. & W. R. R. Co., 54 Hun, 335; Smith v. B. & F. F. Co., 127 App. Div. 278; Wyatt v. Hill, 71 Vt. 468; Neimitz v. Conrad, 22 Oreg. 164. See, also, Filer v. Smith, 96 Mich. 347; Worden v. Davis, 123 App. Div. 193.)

It is not questioned but that the complaint charged a cause of action for false arrest and imprisonment, and this .evidence relating thereto was submitted to the jury under proper instructions, warranted the verdict for those wrongful acts alone regardless of whether the cause of action for malicious prosecution was well founded. The court in the main .charge only .submitted, 1 think, the question of the liability of the defendants for malicious prosecution., although the nature of the cause of action is not character-' ized. The jury , were instructed that the principal question for them to consider was whether or not ¡Rosenberg acted with probable cause. On the issue of false arrest and imprisonment there was no question of probable cause, the arrest having been made by a citizen and not by a peace officer. (Code Crim. Proc. §§ 177, 183.) The facts which in a proper case would bear upon the question of probable cause might become material on the question of exemplary or punitive damages in an action for false arrest and imprisonment, but the court did not leave any question of such damages to the jury. The court did, however, by the charge as made and remarks made in refusing to charge at the close of the charge in chief, clearly leave the question of false arrest and imprisonment to the jury as well as the question of malicious prosecution, but did not instruct the jury with respect to the evidence which bore and was to be considered upon each of the causes of action or with respect to limiting the damages for the false arrest and imprisonment to those caused by the acts occurring prior to the commitment by the magistrate. ¡No question, however, in regard was raised by either appellant and no suggestion was made to the court with respect to further instructing the jury on this point. It was assumed upon the trial, as is manifested by the motion to require the plaintiff to elect, that the complaint sufficiently stated a cause of action both for malicious prosecution and for false arrest and imprisonment. Under the rule, therefore, which confines an appellant to the theory upon which the cause was tried we are not required to pass upon this question. The verdict- is reasonable in amount. It would have -been warranted upon either cause of action. The plaintiff' had been, according to her testimony which the jury were warranted in believing, accustomed to trade in this store as often as once or twice \ week for five or six years, and she was a woman of mature years and respectability, having been a widow fourteen years and having carried on the business of .dressmaking in the city of Hew York for twenty-five years., It seems that it was a.frequeht occurrence for employees to make arrests for shoplifting in this store; so much so that the employees had all been instructed on the subject. The jury were justified by the evidence in determining that a reasonable and prudent man would have made further inquiries concerning the alleged crime and the character and reputation of the plaintiff before depriving her of her liberty and prosecuting her criminally, and, therefore, the action for malicious prosecution was fairly established.

Ho exception has been drawn to our.attention presen ting reversible error, and. we are of opinion that the judgment and order should be affirmed, with costs. , '

Ingraham, McLaughlin, Clarke and Houghton, JJ.,.concurred.

Judgment and order affirmed, with costs. .  