
    Bannert Lewis, Pl’ff and Resp’t, v. Bernhard Kahn and Martin F. Philbin, Def’ts and App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 20, 1889.)
    
    1. False dipbisohment—Juby—Ihstbuctiohs—Question fob juby.
    On the trial of an action for damages for assault, malic;ous prosecut.on and false imprisonment, against a police officer and another, both of the defendants testified that the plaintiff was arrested for disorderly conduct and ‘hollering’ in the street, after having been repeatedly notified by the officer to desist and go inside his house; and the defendant Philbin, the policeman, testifying that he made the arrest on his own responsibility for disorderly conduct, the trial judge charged the jury that no question of disorderly conduct or breach of the peace could arise for their consideration in this action. Held, to be error. The question whether a breach of the peace had been committed by plaintiff should have been sent to the jury, and they should further have been charged that if they found affirmatively on this point, and that the officer had. made the arrest on liis. own responsibility, because of such breach of the peace, a verdict should be given in favor of both defendants.
    
      2. Same—Bbeach of the peace such as to justify abbest—Pbovince OF JUBY.
    The rule is that if the plaintiff made such a noise and disturbance as would create alarm and would disquiet the neighborhood and the persons passing along the adjacent streets, that would be such a breach of the peace as would justify Ms arrest, and it should be left to the jury to determine whether the conduct of the arrested party was calculated to disturb and alarm the neighborhood, to attract a crowd, and lead to disorder or riot.
    ■8. Appeal—Joint tout ebasoes—When judgment bevebsed as to doth.
    A judgment entered on a verdict against two persons jointly for false imprisonment, cannot be allowed to stand as to one and be reversed as to the other for erroneous instructions as to the latter, but will be reversed as to both.
    This action was for an assault, malicious prosecution and false imprisonment.
    On January 9, 1888, at about 8: 30 p. m., the plaintiff was upon his premises, No. 563 First avenue, New York city. The defendant Kahn kept a store two doors north of plaintiff’s. At the hour named, some one from outside threw something at Kahn’s window and broke a pane of glass. Whereupon he came out, went away, and presently returned with two policemen, one of whom is the defendant Philbin. The officers entered plaintiff’s to arrest the person who is supposed to have thrown the missile. Thereupon Kahn said: I hold Lewis, (the plaintiff,) responsible for the .act, and requested his arrest. In the meantime plaintiff’s wife came upon the scene, and there were some strong words between all the parties. The officer subsequently went out upon the street, and the noise of the plaintiff and his ’ wife drew a large crowd. The officer then repeatedly notified the plaintiff to desist and to go inside his house, but the plaintiff arid his wife still keeping up the disturbance, were both arrested and taken to the station house.
    On the trial of the action, the trial judge withdrew all the evidence on the part of the defendants as to the disorderly conduct of the plaintiff, and the jury rendered a verdict for plaintiff for $500, and the defendants took this appeal.
    
      Henry B. Beelcman, W. Hartwell and Edwin L. Abbett, for app’lt Philbin; Charles Sleekier, for app’lt Kahn; James W. Smith, for resp’t.
   Larremore, Ch. J.

With regard to the defendant Kahn’s individual relation to the arrest, the case seems to have been properly presented to the jury. But we think error was committed in that portion of the judge’s charge relating to defendant Philbin which will render a new trial necessary. Undoubtedly, Philbin was brought to the scene of the arrest by Kahn, and he (Philbin) avers that although he entered the plaintiff’s premises, he did so with the permission of plaintiff’s wife.

Philbin further testifies that after he came out on the sidewalk again, plaintiff and his wife applied opprobious epithets to himself and other policemen present: “I started to drive the crowd away, and I turned around and said to Mrs. Lewis, ‘Don’t make any disturbance around here, go inside.’ Mrs. Lewis laughed and said, ‘You thieves, loafers and pickpockets,’ addressed to me. Officers Taylor and Smith were there also. I went outside to drive the crowd away, they numbering all of a hundred, and Mr. Lewis was hollering. I asked him the second time not to make any disturbance. Mrs. Lewis said, 'This is my property, and I will do what I please/ I told him to go in the third time; if he did not keep quiet and go inside, I would lock him up on a charge of disorderly conduct. He said, ‘I will dare and defy you/”

The testimony of ICahn corroborates that of the policeman to the effect that plaintiff was guilty of noisy, violent and defiant conduct, in the open street, and in presence of a crowd, after having been warned by the policeman to desist. It further appears that the charge at the station house against plaintiff was made by Philbin, and was for disorderly conduct.

With this evidence in the case, it was error for the trial judge to charge the jury,as matter of law, that no question of disorderly conduct or breach of the peace could arise for their determination. We regard the. rule stated in Howell v. Jackson (6 C. & P., 723) as the correct one.

“ If the plaintiff made such a noise and disturbance as would create alarm and would disquiet the neighborhood and the persons passing along the adjacent street, that would be such a breach of the peace as would not only authorize the landlord to turn the plaintiff out of the house, but it would also give the landlord a right to have the plaintiff taken into custody if this occurred in the view of the watchman. * * * In a case like the present, it should be left to the jury to determine whether the conduct of the arrested party was calculated to disturb and alarm, the neighborhood, to attract a crowd, to lead to disorder or riot.” See, also, McIntyre v. Raduns, 14 J. & S., 123.

The question as to whether a breach of the peace had been committed by plaintiff should have been sent to the jury, and they should further have been charged that if they found affirmatively on this point, and that the officer had made the arrest on his own responsibility, because of such breach of the peace, a verdict should be given in favor of both defendants.

The views above expressed necessitate an absolute reversal. We cannot, as suggested by plaintiff’s counsel, let the verdict stand solely as against the defendant Kahn.

It is the exclusive province of a jury to say, after they have been correctly instructed on the law, whether either or both defendants shall be held liable, and in what amount. We should therefore not be modifying a judgment as prescribed in section 1317 of the Code, but usurping the jury’s original function, and ourselves rendering a judgment for $500 against Kahn, after reversing the joint judgment of the jury against Kahn and Philbin. The practical injustice of such proposed action might be very great. We cannot say but that a jury, upon a proper statement of the law, will find that a breach of the peace was committed, and that the arrest took place in consequence thereof. In that event both defendants will be exonerated. This question was entirely withheld from the jury upon the trial, and both defendants (Philbin, directly, and Kahn, indirectly) were substantially interested in having them pass upon it.

The judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event.

Daly and Bookstaver, JJ., concur.  