
    George A. Stearns, Respondent, v. Adolph Oppenheim and Charles Grabe, Appellants, Impleaded with George F. Titus, Defendant.
    First Department,
    November 3, 1911.
    False imprisonment — ‘exemplary and punitive damages — evidence — erroneous exclusion — charge — mitigation of damages.
    Where in an action for false arrest' and imprisonment the jury has been allowed to award exemplary as well as compensatory damages and the form of the verdict does not show the amount awarded for each, defendants are entitled to a new trial if prejudicial error was committed with respect to either item of damages.
    Action by an attorney against two detective sergeants for false arrest and imprisonment. Defendants entered plaintiff’s office to arrest a client ■ who had been charged with- committing a felony. As the client was arrested he gave plaintiff a paper which he refused to surrender to the . detectives and. they thereupon arrested him. On the trial plaintiff contended that the defendants came into his office unlawfully and were trespassers there and came with the intention of assaulting and arresting him or his client without authority.
    
      Held, that it was error to exclude evidence offered by defendants to show that they entered plaintiff’s office in good faith; that a charge had been made against the client; that they had been instructed to arrest him and that they believed in good faith that the charge was well founded . and that they had a right to make the arrest without a warrant;
    That such evidence was competent on the question as to whether defendants were liable for punitive' damages, although it, coiild not be used to justify plaintiff’s arrest;
    That it was error for the court to charge that defendants had no right to arrest the client unless a felony had been actually committed and that,there was no evidence that he had committed a felony;
    That it is also error to charge that defendants had no business to arrest the client;
    That a judgment of $2,500 and costs in plaintiff’s favor should.be reversed unless he stipulates to reduce it to $1,000.
    Appeal by the defendants, Adolph Oppenheim and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of January, .1911, 'upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 10th day of January, 1911, denying the said defendants’ motion for a new trial made upon the minutes.
    
      
      Clarence L. Barber, for the appellants.
    
      George A. Stearns, respondent, in person.
   Laughlin, J.:

The action is for false arrest and imprisonment. The plaintiff was an attorney and counselor at law, and the appellants were detective sergeants attached to the detective bureau of the department of police of the city of New York. On the 3d day of February, 1902, the- appellants entered the. law office of the plaintiff with a view to arresting one Sayles, who was' there, and who had been charged with committing a felony. On being arrested Sayles passed a paper to the plaintiff which the appellants believed might be material evidence on the charge of obtaining money under false pretenses, on which they had-arrested him, and on the plaintiff’s refusal to deliver the paper up, arid resisting their attempt to obtain possession of it, and as they claimed assaulting them, they arrested him for willfully obstructing them in the discharge of their duties and assaulting them, and took him to the police station, where he was locked up and detained over night, and until discharged by a magistrate the next morning..

On a former appeal herein (Stearns v. Titus, 193 N. Y. 272) the Court of Appeals decided, on facts which are not controverted, -that the taking and retention of the paper by the plaintiff did not constitute a misdemeanor committed in the presence of the officers which justified them in arresting the plaintiff without a warrant, arid that in so far as they sought to defend the action on the theory that plaintiff was committing a misdemeanor in attempting to destroy evidence, it was groundless. On'the trial which is now under review no justification for the arrest of the plaintiff was established,, and the only questions submitted to the jury for determination were, those relating to. the amount of the damages. The jury were allowed to award exemplary, as well as compensatory, damages,, and the form of the verdict does not show the amount awarded for either. If, therefore, upon the trial, or in the submission of the case to the jury, prejudicial error was committed with respect to either item of damages, the appellants"'are entitled to a new trial, unless the verdict shall be reduced sufficiently to cure the error. «

The plaintiff charged that the defendants entered his office and with force and arms assaulted and arrested him, and violently pulled -and dragged him about, and then forced and compelled him to accompany them to the 'police . station. Although it was not material to the 'issues to determine whether or not Sayles had committed a felony or other crime, yet it was proper for the appellants to show the circumstances under which they entered the plaintiff’s office as bearing upon the question of exemplary damages. They pleaded as a defense that they entered the office to arrest Sayles for a felony, with which he was charged. They offered to show, by reading the testimony of one Bahr given on a. former trial, he having since died, that Sayles had committed a felony. The evidence was excluded on a general objection interposed by the plaintiff, and the appellants duly excepted. The remarks of the court in excluding' it indicate that it was ruled out on the theory that it would contradict the testimony of Sayles given on cross-examination with respect to the same matter, which was collateral to the issue, and that, therefore, appellants were bound by his answers. . Notwithstanding the exclusion of this evidence on the plaintiff’s objection, plaintiff requested the court to charge the jury that the appellants were trespassers in his office, and that' they were there with intent to commit an unlawful act. The court responded with respect to each of these requests as follows: “Declined in the language requested.” The plaintiff then requested the court to instruct the jury that appellants had no right to arrest Sayles unless a felony had been actually committed, and further that there was no evidence that he had committed a felony, both of which requests were granted and appellants duly excepted. Plaintiff, not content with this, further requested the court to charge that in the absence of proof that Sayles had committed a felony “the defendants absolutely had no business to go there,” to which the court replied: “I will not charge that. I will charge they had no business to arrest him.” Plaintiff thereupon requested the court to charge “that their intent was, in going to that office, to make an unjustified assault,” to which the court responded, “ Declined, in the language requested,” and the plaintiff further requested the court to charge that the defendants had no duty to perform in his office ’ and were, therefore, “mere trespassers and brawlers in said offices. ” This request was declined. Plaintiff made twenty-six specific requests to charge, most of which were designed to have the jury instructed that the appellants were unlawfully in his office.

It is manifest that this conduct on the part of the plaintiff was calculated to prejudice the appellants, and that the instructions to the jury ' at his request, to which reference has been made, were prejudicial.' It is perfectly plain that, if the plaintiff was to be permitted to contend before the jury, as he did, that the defendants came into his office unlawfully and were trespassers there, and came with the intention of assaulting and • arresting him or Sayles without authority, the appellants should have been permitted to show, nót as a justification for the arrest of the plaintiff,- but as bearing upon the question of whether they-should be mulcted in punitive damages, that they were there in good faith and that a charge had been made at headquarters that Sayles had committed a felony, and that they had been instructed to apprehend- him and that they in good- faith believed that the charge was well founded and that they had a - right to make the arrest without a warrant. If the plaintiff had confined his complaint to his arrest and detention and the treatment he received from the officers, and the court had instructed the jury that it was immaterial whether Sayles had committed a felony or other crime or -not, and that they must assume that the detectives were lawfully in the plaintiff’s office in the performance of what they deemed to be their duty, then there would be ho ground for interfering with the verdict; but in the circumstances we think that the judgment and order should be. reversed and a new trial granted, with costs to appellants to abide the event, unless the plaintiff stipulates to reduce the recovery to $1,000, and if he shall so stipulate the judgment and order as so modified are affirmed, without costs.

Ingraham,- P. J., Clarice, Scott and Dowling, JJ., concurred.

a

Judgment and order reversed and new trial ordered, with costs to appellants to abide event, unless plaintiff stipulate to reduce recovery to. $1,000, in which event the judgment as so modified and the order appealed from are affirmed, without costs. Order to be settled on notice.  