
    Joseph Oppenheimer, App’lt, v. The Manhattan Railway Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    1. False imprisonment—Malicious prosecution—Railroad.
    Plaintiff was arrested by a police officer on a charge made by one oí defendant’s employees, and was taken before a magistrate and convicted. Meld, that there could be no cause of action in such a case for malicious prosecution or false imprisonment.
    3. Railroad—Assault—Ejection of passenger from moving train.
    An employee of a railroad has no authority forcibly to remove a passenger from the train while it is in motion, and for any injury resulting from such a removal the company is liable.
    Appeal from judgment entered on dismissal of complaint at circuit.
    
      M. L. Townsend, for,app’lt; Davies & Sapallo, for resp’t.
   Per Curiam.

The complaint appears to join an action for an assault by one of the defendant’s employees, an action for malicious prosecution and an action for false imprisonment.

It appeared that the plaintiff was arrested by a police officer on a charge of one of the employees of the defendant, and was subsequently taken before a magistrate and convicted of the charge. There can, therefore, be no cause of action for malicious prosecution or for false imprisonment; as the prosecution could not be malicious, the plaintiff having been found guilty of the charge ; and there was no false imprisonment because the plaintiff was not imprisoned by the defendant, but was arrested by a police officer and imprisoned by the public authorities, and tlie charge for which he was imprisoned was proved.

It appears, however, that the plaintiff alleged that after he boarded the train, and after the train had started, he was forcibly removed by one of the defendant’s employees, acting under its authority, from the train. We think this removal was under the,. circumstances illegal. While the defendant’s right to make such reasonable rules and regulations as are necessary for the government of its passengers is unquestioned, and while the employees of the defendant would have been justified in using force to restrain the plaintiff from getting upon the car, or would have been justified in stopping the train and removing the plaintiff from the ' car after he had forced his way on, upon the ground that he had not paid his fare for a trip down town ; but he being on the train and the train having started, the defendant’s employee had no authority forcibly to remove him from the train while it was in motion. It has been held to be contributory negligence for a passenger to attempt to alight from a train while in motion. And it is clear that for any injury resulting in consequence of the forcible eviction of a passenger from a train in motion the defendant would be liable.

The fact that no special injury was occasioned by the unlawful, act of the employee in ejecting from the train would not justify' a dismissal of the complaint

The plaintiff was entitled to recover such damages as the jury should allow for the unjustifiable assault, subject to the power ' of the court to set aside the verdict in case it should be excessive.

We think, therefore, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event-

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.  