
    Bertha K. Doane, Resp’t, v. Gustaf A. Anderson, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    1. Trespass—Search warrant.
    Defendant, without probable cause, induced a magistrate to issue a search warrant to search plaintiff’s house and person for alleged stolen diamonds, whereby she was grossly humiliated by the constable who executed it Held, that this constituted a trespass for which defendant was liable.
    2. Same—Damages.
    In the execution of the warrant the officer compelled plaintiff to undress before him and ran his fingers through her hair in searching for the diamonds. Held, that a verdict for $2,500 was not excessive.
    3. Same—Malice.
    Proof of contradictory statements by the person who claimed to have lost the diamonds as to their disposition; that defendant had formerly been a beau of the plaintiff and was now attentive to the other person, and his own testimony that he could not honestly believe that plaintiff stole . the diamonds, is sufficient to authorize a finding that he was actuated by malice in making the complaint and procuring the warrant. •
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    The defendant, on September 2, 1890, went before a justice of the peace of the town of Cornwall, Orange county, and had a search warrant issued to search the person and house of plaintiff, which the constable proceeded to do, compelling her to disrobe and put on a wrapper; he searched all her clothes, including her undergarments and bustle, put his hands through her hair to see if she had the jewels, claimed to be stolen, concealed in her hair. He also made her take off her shoes. For this swearing out of said warrant and the acts which followed it, this action was brought. The jury gave a verdict for $2,500, from the judgment entered upon which this appeal is taken.
    
      John M. Gardner, for app’lt; Wm. D. Dickey, for resp’t.
   Pratt, J.

—The case of Blodgett v. Race, 18 Hun, 132, more than justified the learned trial judge in holding that the magistrate had no jurisdiction, and that no probable cause was disclosed by defendant to him on the application for the warrant to search the plaintiff’s house and person. But the fact of a warrant, regular on its face, justified and protected the constable in making the search. Hence, the plaintiff had no remedy against the constable, but she was, nevertheless, subjected to gross indignity without lawful authority; and, since the constable was protected, it follows as a matter of" course that the magistrate and the defendant who wrongfully induced him thus to act are the parties who really did and are responsible for the wrong. ■ It was not a matter of any moment on the trial, nor is it now, to determine the precise classification or nomenclature of this cause of action. The defendant seems to proceed on the theory that it was cither libel or slander on the one hand, or false imprisonment or malicious prosecution on the other. But the allegation of false and defamatory words charging crime spoken by defend-ant to the magistrate did not make this a case of slander, nor did the fact that they were reduced to writing make it libel; nor did the allegation of want of probable cause make a case of malicious prosecution; .but, all taken together, did show that, by means of false and perhaps malicious statements, charging crime, the defendant, without probable cause, induced this magistrate, without jurisdiction, to do a wrongful act, i. e., the issuing of this search warrant, the natural consequence of which was to cause the constable, without authority of law, to invade the. privacy of plaintiff’s apartments, to grossly humiliate her, to compel her to undress before him and even to suffer him to put his fingers through her hair in searching for diamonds which it was falsely alleged had been stolen from a Mrs. Pohl. Here, then, was a trespass by defendant and the magistrate. And if it was done with what the law regards as malice, then this verdict was none too large; for this plaintiff could not have been subjected to coarser indignity if she had been a thieving prostitute.

Now on the question of malice: It is quite apparent that there was evidence which justified the action of the jury. Defendant testified that “he could not honestly believe that. Mrs. Doane stole the diamonds.” Besides it was conceded that Mrs. Pohl, the owner of the diamonds, once declared that she had put them in a safe deposit company in New York; her excuse for the declaration was that she wished to mislead the other folks in plaintiff’s boarding house as to her custody of the diamonds; the suggestion being that there would be less danger of loss by larceny. But it thus plainly became a question of fact which of her statements was true.

The jury may well have found that Mrs. Pohl’s dimonds were never stolon at all. This fact, and the farther fact that defendant did not believe that plaintiff had stolen them any way, quite justified the inference of malice. And, besides that, defendant was previously a sort of beau of plaintiff’s and was now attentive to Mrs. Pohl. Then, again, his only excuse was that he was performing an act of gallantry towards Mrs. Pohl in making this complaint, that is to say, in starting the legal machinery which resulted in compelling this girl to undress before a constable and let him rummage with his fingers through her hair. Besides this, it is quite evident that defendant’s counsel made quite serious effort to show that plaintiff’s associations in the city were not quite what they ought to have been. Taking all the circumstances together, especially the fact that defendant was formerly a sort of beau to her, and. that, therefore, in his estimation, she was good enough for him, it is not surprising that the jury proceeded on the theory of malice, and not a little of it either’.

These views sufficiently indicate the reasons why we think this verdict about right

There were no exceptions to the charge and none during the trial save such as-have been incidentally considered though not discussed in detail.

The judgment should be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.  