
    CONRAD MEYER, Plaintiff and Respondent, v. JAMES CLARK, and others, Defendants and Appellants.
    /. ARREST, WITHOUT WARRANT OR PREGEPT.
    
    1. POLICE, POWER OE SO TO ARREST.
    
      (а) Excise law. Police have no power to arrest under it without a warrant, unless the party is actually engaged in violating its provisions at the time of the arrest {Laws 1857, p. 411, § 16.
    (б) Common law. Police can not for a breach of the peace or a simple misdemeanor, arrest an offender without a warrant, unless the arrest is made while he is engaged in the act constituting a breach of the peace or the misdemeanor.
    1. Violation of excise law in selling intoxicating liquors without a license is not a misdemeanor ; it is too low a grade to authorize an arrest at common law without a warrant after the offense has been committed.
    2. ACTUAL ENGAGEMENT, WHEN ARREST NOT MADE DURING.
    
      {a) Interval of time.
    1. When a policeman, after having seen a breach of the peace or a misdemeanor committed, departs, and afterwards returns, he can not arrest without warrant for such previous offense so committed in his view.
    1. The shortness of the interval does not affect the question.
    
    
      II. FALSE IMPRISONMENT.
    
    1. OFFENSE COMMITTED, BUT ARRESTING WITHOUT WARRANT.
    
      (a) Liability for. If a police officer arrest without a war- , rant in cases where he is not authorized so to do, he is liable in an action of false imprisonment for carnages, although the party arrested had committed the offense for which he arrested him, and that offense rendered him liable to arrest under a warrant.
    (5) Defense.
    1. Order of superior officer is not.
    
      Before Monell, Ch. J., and Sedgwick, J.
    
      Decided April 3, 1876.
    Appeal from an order. •
    The action was for false imprisonment.
    The complaint, setting forth the cause of action, was accompanied by the following affidavit of the plaintiff:
    “That while this plaintiff was quietly and peaceably attending to his business in his store, the defendant Burns entered the same, and after remaining a short time, demanded that this deponent should go with him to see the captain of the police force of the thirty-third police precinct, which deponent refused to do, and that said Burns without any power or authority continued to demand and insist that this deponent should go with him as a prisoner to the thirty-third precinct station-house, and did otherwise harass and annoy this deponent; and that deponent further refusing, the said Burns left, and returned between five and six o’clock in the evening, and in company with the other defendants, and they the said defendants, then and there in the store and premises of the said plaintiff, and without cause or legal right or process, compelled this deponent to leave and close up his store, and go with them in and along the public streets and avenues in said ward, to said station-house, and did then and there falsely, maliciously, and without cause or legal right so to do, imprison this deponent in a dark, cold, and damp cell, without food or drink of any kind for the space of fourteen hours thereafter.”
    Upon this affidavit the defendants were held to bail, each in the sum of one thousand dollars.
    The defendants moved at special term to vacate the order of arrest, when the defendant Byrnes made the following affidavit:
    “ That he is a member of the police force of the city of New York, to. wit, a patrolman thereon, attached and assigned to the thirty-third police precinct, of-and in said city of New York, under the orders and command of Henry Hedden, captain of police in and of said precinct, and that the defendants Clark and Reilly are likewise patrolmen of police of and in said precinct, and under said captain of police.
    “ That as a member of said police force, it became and was the duty of defendants to arrest all persons found guilty of selling intoxicating liquors without a proper license therefor. That on the eighth day of November, 1875, said Hedden, by special orders to this deponent, directed him to arrest all persons that he might find offending as aforesaid, and directed his » attention specially to the plaintiff among others; that this defendant obtained clear proof and positive evidence that the plaintiff was offending against the law in the respect aforesaid, and by the orders of said Hedden, and in the discharge of the positive duty prescribed by law of this deponent as a member of the police force as aforesaid, proceeded to arrest said plaintiff; but said plaintiff not acceding to the request of this deponent to accompany him peaceably to the station-house, this deponent reported to said Hedden, who required the other defendants to accompany this deponent, and require him to come to the station-house of the precinct; that the defendants thereupon without using any force or violence, constrained said plaintiff to accompany them to the station-house, where complaint was duly made to the officer at the desk, who caused said plaintiff to be detained until the next sitting of a police court; that at the next sitting of a police court, the said plaintiff was taken before a magistrate, and complaint duly made against him for the offense aforesaid ; and said magistrate did not discharge said plaintiff, and only released him upon his giving bail and security to answer said charge, but, on the contrary, held him to bail to answer said charge.
    The plaintiff in a counter affidavit stated : That when he was first interfered with it was in his store, where he was not then engaged in selling any liquor, but was so induced to do by the defendant Burns while said Burns was in citizen’s clothing, and after said Burns had drunk the liquor given him ; and deponent denies that he was then or is now selling, disposing of, or exposing for sale any liquor, ale, or beer without any legal license so to do.
    That when said Burns drunk said liquor, he in an angry manner demanded that deponent should go and see the police captain at the station-house about one half a mile distant, and deponent told him that if the captain desired to see him, he could call on deponent at his store, and the said Burns further insisting upon this deponent to go with him, and this deponent’s continued refusals so to do, the said Burns left the store, and in a few minutes returned with the said defendants Clarke and Beilly, and the said Clarke stating that he would take the responsibility thereupon, the other two defendants and said Clarke forceably took deponent to the said station-house, and kept him confined therein.
    The motion to vacate the order of arrest was denied, but the bail was reduced.
    The defendants appealed.
    
      C. F. McLean, for appellant.
    
      R. Oatis, for respondent.
   By the Court.—Monell, Ch. J.

This action is . for false imprisonment,, and not, as seems to have been supposed by the appellants’ counsel, for a malicious prosecution. The question of probable cause, therefore, is not involved (Burns v. Erben, 1 Robt. 555; affirmed, 40 N. Y. R. 463), and the complaint and affidavit of the plaintiff sufficiently show a cause of action and ground of arrest.

The cause of the arrest was an alleged violation of the excise, law of the State ; "and the arrest was made by the defendants, as policemen of the city, acting under the orders of the captain of the precinct. Such order was verbal, and the defendants had no-warrant from a magistrate.

Under the act to “suppress intemperance and to regulate the sale of intoxicating liquors ” (Laws 1857, chap. 628, p. 405), it is provided (§ 16, p. 411) that it shall be the duty of certain named officers, including ;policemen, to arrest all persons found actually engaged in the commission of any offense in violation of the act, and' forthwith to carry such person before any magistrate of the city, to be dealt with according to the provisions of the act.

It appears in this case that Byrnes, one of the defendants, having found the plaintiff actually engaged in the commission of an offense, i. e., selling intoxicating liquors without having obtained a license therefor, reported the case to the captain of the precinct, who required the other defendants to accompany Byrnes, to assist him. Thereupon the defendants took the plaintiff to the station-house, where he was detained until the next sitting of a police court. The interval between the time when the plaintiff was found by Byrnes committing the offense, and the arrest, was, as the plaintiff states it, only a few minutes.

But, having requested the plaintiff to accompany him to the station-house, and he refusing, Byrnes left and afterwards returned with the other defendants, and made the arrest.

It is not necessary, I think, upon this appeal, to determine whether an offense against the excise law had or had not actually been committed, nor whether the means resorted to to procure the evidence of its commission should be regarded with favor towards the defendants. We must assume that enough appeared to authorize the arrest, if the officers have acted within the power conferred upon them by law.

So far as the power is given by the excise statute, it is confined to persons found actually engaged in the commission of an offense. If, therefore, a person is found to be offending, he may, while so offending, be arrested without precept or warrant, and taken before a magistrate.

The common law right to arrest without a warrant, in the cases, in which it is given to a citizen as well as to magistrates and ministerial officers, is confined to the time when the offense was committed. And whether an offense had been committed or not, an arrest can not be made afterwards without a warrant (McKay’s case. 5 City H. Rec. 95). It is not essential to notice the difference between the right of a citizen and of an officer—which is chiefly that the former must act upon his own information, and that the latter may act upon the information of others, as well as the power of the latter to command assistance—in either case, the right to arrest must be exercised at the time the offense is committed. If there is an interval of time, then there must be a magistrate’s warrant (1 Chit. Crim. Law, 20, 21). Thus if an affray be made to the breach of the peace, any person without a warrant may restrain any of the offenders in order to preserve the peace ; but after there is an end of the affray, they can not be arrested without a warrant (Phillipps v. Trull, 11 J. R. 487).

But ministerial officers may, without warrant, make arrests, when there is reason to believe a felony has been committed, even though one has not been committed, and the arrest is made afterwards. A citizen, who under such circumstances should make an arrest, would not be protected (1 Chit. Crim. L. 20, 21, 22; Holley Mix, 3 Wend. 350 ; Slater v. Wood, 9 Bosw. 15, 26).

In the higher crimes, such as treason, felony, and some misdemeanors, an officer, upon probable cause and sufficient information that a crime has been committed, has a larger power than in cases of lesser degree. He does not need the authority of a warrant, but may arrest without one even after the time when the supposed offense was committed •, and is protected even though no crime had in fact been committed.

But in breaches of the peace and simple misdemeanors, an officer, no more than a citizen, can without a warrant arrest an offender, unless it is done while the offender is engaged in the act constituting the breach of the peace or the misdemeanor (1 Chit. Crim. L. 23 ; 2 Esp. Rep. 540 ; 1 East P. C. 305).

The excise law attaches a penalty of fifty dollars for each offense of selling intoxicating liquors without a license. The offense is not made a misdemeanor, and is of too low a grade, even if it can be called an offense, to bring it within any of the recognized cases where arrests can be made without a warrant, after the offense has been committed.

I do not regard the shortness of the intervening time, between the commission of the offense and the arrest, as affecting the question of the officer’s right. If a short interval continues the right, a longer interval would also, and courts or juries would have to measure degrees of time in determining the rights of parties. And the protection of individuals from arbitrary arrest, will be better secured by requiring a complaint and a magistrate’s warrant in all cases of arrest not literally within the letter of the law.

In the case before us we can see no necessity for making the arrest in the manner it was done. The penalty is a money fine only, and there was no probable danger of an escape of the offender. If there was time to report the case to the captain of the precinct, there was time, or time should have been made, to obtain from a magistrate a warrant. And the practice—• if to any extent it exists—of using official power where the law does not confer it, can not be too greatly deprecated and condemned. The liberty of the citizen is too sacred to be lightly or causelessly interfered with ; and the officers of police, however necessary and valuable they may be as conservators of order and in the enforcement of law, must keep themselves within the limits of the law, and not assume functions unless given in the law.

That the defendants acted under and in pursuance of the orders of the captain of the precinct, does not relieve them from responsibility for their act. Neither they nor the captain could make the arrest without a warrant. ,

Upon all the facts before us, I am of the opinion that the defendants were trespassers, and liable to arrest under the 179th section of the Code.

The order should be affirmed with costs and disbursements.

Sedgwick, J., concurred.  