
    Simon Waldheim v. Max Sichel and another.
    An action for false imprisonment cannot be maintained for an arrest made npon a warrant, granted by a magistrate having jurisdiction, against the parlies upon whose complaint the warrant was issued.
    In such an action it is improper for the justice to allow an amendment of the complaint by adding a count for malicious prosecution; the plaintiff having rested 1Ü3 case and failed to sustain his action in its original form.
    In an action for malicious prosecution, the question of the want of probable cause is purely a question of law, unless there is conflicting testimony as to the facts.
    Appeal by defendant from a judgment of tbe Marine Court. This was an action for false imprisonment. The pleadings were verbal. Tbe evidence for the plaintiff showed that he was arrested upon a warrant issued by a police justice, upon the complaint of the defendants, but was discharged upon their cross-examination. At tbe close of tbe plaintiff’s case, the counsel for the defendant moved to dismiss tbe complaint on the ground that an action for false imprisonment did not lie; that the plaintiff’s remedy, if any, was an action for malicious prosecution The court denied the motion, but allowed the plaintiff to amend his complaint, by adding a count for malicious prosecution, to which the defendants’ counsel excepted. In his charge to the jury, the justice stated that the want of probable cause was a mixed question of law and fact, and left it to the jury to determine whether there was sufficient evidence thereof, to which the defendants’ counsel duly excepted. There was a verdict for the plaintiff.
    5. Kaufman, for the appellants.
    
      McOunn and Moncnef for the respondent.
    I. The justices’ courts have the same power to order an amendment of the complaint as courts of record. Fulton v. Heaton, 1 Barb. 552. The amendment allowed belonged to the same class of cases (torts), and was proper.
    II. The existence of probable cause is a mixed question of law and fact; whether the circumstances alleged are true, is a question of fact; if true, whether they amount to probable cause is a question of law. McCormick v. Sisson, 7 Cow. 715 ; Pangborn v. Bull, 1 Wend. 345 ; Martin v. Deyo, 2 Wend. 424 ; Hall v. Suydam, 6 Barb. 83.
   Daly, J. —

The propriety of allowing a plaintiff, even before the day of trial, to change an action for false imprisonment into an action for malicious prosecution, may be very much doubted ; but to permit a plaintiff, after he had rested his case and had wholly failed to establish it, to amend his complaint, by substituting an entirely distinct and different cause of action, was to take the defendant completely by surprise. He came into court to defend an action against him for false imprisonment, and all that he was required to show, as a complete answer to it, was, what the plaintiff himself established, that the arrest was made ■upon a warrant granted by a magistrate having jurisdiction. lie may have been, and will be presumed to have been, wholly unprepared to answer the charge, that he was actuated by malice in, or that there was a want of probable cause for, preferring the complaint upon which the warrant issued. To require him, without previous notice, to answer or explain the circumstances relied upon, to show the existence of a want of probable cause, was to deprive him of what he was entitled to, time to prepare and get ready for defending himself against an action which he had no right to anticipate. It was taking him by surprise and giving the plaintiff an undue advantage, and generally to allow a plaintiff, after he has failed in his action, to resort to another, by suffering him to amend his complaint on the spot, would practice be followed by the grossest abuses.

The judge, moreover, erred in telling the jury that the want of probable cause was a mixed question of law and fact. Where there is no dispute as to the facts, which was the case here, it is purely a question of law, upon which the court are bound to instruct the jury positively, and, if they do not follow the instructions they receive, their verdict will be set aside as against evidence. It does not become a mixed question unless there is conflicting testimony as to the facts. Bulkley v. Keteltas, 2 Seld. 384. The judgment must be set aside.

Judgment reversed.  