
    Roger M. Sherman, App’lt, v. Irving Grinnell et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    False imprisonment—Variance between pleading and proof.
    In an action for false imprisonment the complaint alleged that defendants, under the color of authority of an execution issued against the person of plaintiff, which they illegally issued upon a certain judgment against him and in their favor, maliciously, unlawfully, and without legal authority assaulted the plaintiff, arrested him and detained and unlawfully deprived him of his liberty for the space of six months thereafter. Held, that plaintiff could introduce in evidence an execution which recited that a judgment was obtained against him on the date alleged in the complaint by the defendants, “ executors,” together with proof of the handwriting of one of the defendants upon such execution, and with testimony that it was the execution' under which the plaintiff was arrested.
    (Follett, J., dissents.)
    Appeal from judgment in favor of defendants entered on verdict directed by the court.
    
      Joseph A. Thompson (James M. Smith, of counsel), for app’lt; Evarts, Choate & Beaman (W. V. Rowe and Joseph H. Choate, of counsel), for resp’ts.
   Van Brunt, P. J.

This action was brought to recover damages for false imprisonment, the claim being that the plaintiff was taken into custody under an execution unlawfully issued at the instance of the defendants. The difficulties into which the plaintiff has fallen have arisen entirely from the fact that he has alleged much more than was necessary for the proper setting forth of his cause of action, but such surplusage in no way affected the force of the proof attempted to be offered, and which was excluded. The complaint alleged, among other things, that on the 27th of February, 1889, the defendants, under the color of authority of an execution issued against the person of this plaintiff, which they illegally issued to the sheriff of the county of New York upon said judgment (judgment having been previously referred to) at the city of New York, maliciously, unlawfully and without legal authority assaulted the plaintiff, arrested this plaintiff, and detained and unlawfully deprived him of his liberty for the space of six months thereafter. This was the gravamen of the complaint; and,- in order to prove this allegation, the plaintiff offered in evidence an execution, wherein it was recited that a judgment had been obtained on the 23d of February, 1886, in an action in the city court between Irving Grinnell and J. S. Bowdoin, executors, plaintiffs, and Roger M. Sherman, defendant, in favor of said Grinnell and Bowdoin against the said Sherman for the sum therein stated, etc., together with proof of the handwriting of the defendant Harden upon such execution, and with testimony that it was the execution under which the plaintiff was arrested. This execution was objected to upon the ground that it appeared upon its face that it was not an execution such as was complained of in the complaint, but in a wholly different action, by different persons, not at all identical with the defendants in thi-s suit, or any of them. The court thereupon excluded the execution. We think this objection was entirely untenable. The allegation in the complaint was that on the 27th of February, 1889, the plaintiff was arrested under an execution issued upon a judgment obtained in favor of the defendants Grrinnell and Bowdoin on the 23d of February, 1886, which is precisely the judgment described in the execution in question. The introduction of the word “executors” in the execution, in the manner in which it is introduced, was entirely surplusage, and meant nothing. The judgment is not recited to have been obtained by them as executors, but they are simply stated to be executors; of what or of whom there is no statement. The plaintiff had a right to introduce this paper in evidence for the purpose of showing the connection of the defendants with this arrest, and then it became necessary, for the defendants to justify the issuing of the execution by showing the existence of a proper judgment as a foundation therefor; but in the very commencement of the proof the evidence of the plaintiff is shut out by which he sought to connect these defendants with the act of the sheriff. This, we think, was error which calls for a reversal of the judgment. It is difficult to see upon what theory the defendants Grinnell and Bowdoin could be sued as executors for a wrong, if any, committed against the plaintiff, even if they did the wrong in the administration of the estate. It is a well-settled principle that for all acts of executors they are liable individually, and not in their representative capacity: and, therefore, even if the process was issued in their name as executors and was improperly issued, they would be individually liable only for the wrong.

Certain other evidence was attempted to be offered upon the part of the plaintiff which was excluded, and the court thereupon directed a verdict for the defendants, and granted the exorbitant allowance of $1,000. We cannot see upon what theorjr the court directed a verdict in favor of the defendants, because for failure of proof the most that could have been done under such circumstances was to dismiss the complaint The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event

Babbett, J., concurs;- Follett, J., dissents.  