
    Ruzella Fuller, Plaintiff, v. Thomas Redding, Defendant.
    (Supreme Court, Otsego Special Term,
    April, 1896.)
    1. Villagés — Ordinances imposing only a .penalty for violation cannot - be enforced by criminal proceedings.
    A village ordinance which provides only for a penalty for a violation contemplates only a civil action to recover such penalty, and does not authorize a criminal prosecution.
    2. Same — Arrest.
    The provision of the General Village Act giving a police .constable (the right .to arrest a person while in the act of violating a village, ordinance does not authorize an arrest upon a warrant issued long after the violation.
    3. Criminal law — Information for violation of village ordinance..
    An information of a violation of a village ordinance which does- not aver that the act was willfully and unlawfully done Is insufficient to authorize the granting of a warrant.
    4. False imprisonment — Motive.
    In actions for false imprisonment the motive of the defendant is á .proper subject of investigation to enable the jury to pass upon the question of exemplary damages.
    5. Same — Damages.
    The right to exemplary damages cannot he denied in such a case on the ground that plaintiff had previously committed an act for which she would be liable to a village in a civil action.
    Motion by defendant, upon the minutes of .the judge, 'to set aside the verdict and for a new trial upon exceptions and because" the verdict was for excessive damages, and otherwise contrary to the evidence and to law.
    Gibbs & Wilber, for defendant. '
    Tilly Blakely, for plaintiffs
   Mattice, J.

The jury rendered a verdict of $600 in favor of the plaintiff for being falsely imprisoned and unlawfully restrained of her liberty by the defendant.

■ The jury was directed to render a verdict for plaintiff and were required to assess her damages.

The inference most favorable to the defendant drawn from the evidence required such direction.

The village of Otego, a municipal corporation created under the General Village Act, had by its board of - trustees' passed an ordinance which in effect prohibited all persons from riding a bicycle- upon sidewalks under a penalty of $1. I am not entirely satisfied that the ordinance was legally adopted and had any binding force whatever, yet I do' not pass upon that question, but assume for the purposes of this motion that it was legally adopted.

- About seven days after the plaintiff had been riding her wheel upon the. sidewalk, the defendant procured from a justice of the peace having jurisdiction to issue process .for the apprehension of persons committing crimes in the villagé of Otego a warrant for the arrest of the plaintiff, placed it in the hands of the peace officer and directed him to arrest the plaintiff. The officer arrested the plaintiff and took her before the justice, where bail was furnished and the hearing adjourned. , Upon the adjourned day the defendant withdrew the charge and the justice discharged the. plaintiff.

A criminal prosecution was not contemplated by. the adoption of the ordinance. It will be observed the word penalty only is used. “All persons are forbidden under penalty of one dollar,’’ etc.

■ It is true that a penalty, like a fine, is a pecuniary punishment inflicted by the law for its violation, yet there is a marked distinction which is recognized by the courts. A penalty is that which is demanded for the violation of a statute which may or may not be a crime. A fine is a punishment for the commission of a ■ crime. Crimes, except the gravest, can only be punished by fine or imprisonment. A penalty is not in any legal sense a fine.

The distinction was recognized in the Village of Lancaster v. Richardson, 4 Lans. 136, where it' was held that a statute making it a misdemeanor, punishable by fine or imprisonment, to destroy ornamental trees was in no legal- sense one for the infliction of 'a penalty.

Indeed, nearly all of our statutes giving a penalty for doing a prohibited act preserve the distinction by providing that the .penalty may be recovered in a civil action, while the crime, if it be so declared, must be punished by the infliction of a fine or im? prisonment after conviction in a criminal action.

Chapter 291 of the Laws of 1870, as amended in 1875 and again in 1885, known as the -General Village Act, gives a police constable the right to arrest a person while in' the act of violating a village ordinance. This right to arrest cannot be extended by implication in order to authorize an arrest upon a warrant issued long after the violation. ■ Under well-settled rules of construction statutes of this, kind are to be strictly read and cannot be extended by implication where the liberty of a citizen. is. involved: If a violation of this ordinance were a misdemeanor any one would haWe the right to arrest a -pérson while in the act of violating it, independent of the provision referred to, which would in such case be an idle one. . The provision was doubtless intended to enable a police constable to' restrain the person from violating the ordh nance by apprehending him while in the act.

As was said by Mr.- Justice Smith on the former trial: The same reason does not follow and does not apply to an-arrest made after the violation has ceased.” ■ •

This question was not before the court in Roderick v. Whitson, 51 Hun, 620, and cannot be regarded as having been settled by the decision in that case.

Neither can the warrant be upheld under section 652. of the Penal Code, for it is not averred in either the information, deposition or' warrant that the plaintiff willfully and unlawfully did the act complained of. Hewitt v. Newburger, 141 N. Y. 538; Wass v. Stephens, 128 id. 128.

It follows that the justice was without jurisdiction and the warrant and proceedings under it were void.

After the warrant was issued the defendant, by participating in the acts which led to the arrest of the plaintiff, became liable.

No error was committed in the reception or rejection of evidence which requires a new trial. ' ' ■

Much of the evidence complained of bore legitimately upon the motive of the defendant in' causing the arrest of the plaintiff. The motive of a defendant in_ this class of cases is a proper subject of investigation in order to enable the jury to pass upon the question of exemplary damages.

While it is true that a trespasser upon lands cannot recover punitive, damages fdr the use of excessive force by the owner who has the right to remove him; except, perhaps, when the owner takes .advantage of his right to eject, and inflicts a wanton and malicious assault (Kiff v. Youmans, 86 N. Y. 324-329), yet the case under consideration is. easily distinguishable. Here the defendant was "not engaged in a lawful act, but was a wrongdoer from the beginning. The case last above cited was'decided upon the theory that the plaintiff was a wrongdoer at the time, and the defendant was engaged in the lawful act of ejecting him, and that-the motives of one engaged in a lawful act, although excessive force was used, could not be made the basis of vindictive damages.

In other words, a person may exercise a legal right, no matter how much he may be inspired by ill will,, malice or hatred.

In the case at bar, as before stated, the defendant was engaged, in a wrongful act, and his motives become material. Nor is the-plaintiff to be denied the right to recover exemplary damages-because several days before she did an act for which she would be liable to the village of Otego in a civil action. To hold otherwise would be to hold that a person who had become liable to another in a civil action might -be falsely imprisoned upon such charge by a stranger and then limited to compensatory damages, no matter how evil may have been the motive that inspired the-imprisonment.

The defendant also insists that it was error to exclude the-answer of the plaintiff to the question You had stated, had you not, that you would ride on .the sidewalk in defiance of the ordinance whenever you saw fit ? ”

The arrest being unlawful, the motive of the plaintiff in riding upon the walk was of no importance. It did not affect her right to compensatory damages, and it was not competent to go before-the jury upon the question of punitive damages unless it was shown that the remark had come to the defendant’s ears before he caused plaintiff’s arrest.

Punitive damages are awarded to punish a defendant for his evil intent and motive in doing an unlawful act. It would be absurd to claim that the defendant’s motive was in the least affected by a remark he knew-not of.

For similar reasons, in actions of libel and slander that class of evidence is not received in mitigation unless it is shown that the defendant had not only heard the rumors, reports or words, but actually believed them.

Moreover, the defendant did not question the correctness of the ruling upon the trial, and he cannot now avail himself of an exception which he did not take.

After a careful examination of the testimony I am satisfied that there was some evidence tending to show that the defendant. was actuated by evil intent ór malice, and sufficient to require its submission to the jury upon the question of exemplary damages.

A smaller verdict"would have been more satisfactory, yet it is not so. large that it evinces passion or prejudice on the part of the jury, or was the result of a mistaken or improper view of the evidence, It cannot be said, as a matter of law, that the amount discredits the verdict.'

The motion for a new trial should be "denied.

Motion denied.  