
    James H. Swart, App’lt, v. Charles Rickard, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    1. False impiiisonment—Jurisdiction.
    Where the affidavit for a warrant is insufficient to give the justice jurisdiction of the person of the accused, the party causing the arrest under the warrant, is liable in an action for false imprisonment.
    2. Same.
    An allegation, in such affidavit, that the complainant believes, and had cause to believe, that his store was burglarized by the accused, does not establish or tend to establish the charge
    3. Same.
    The reason for such belief, that said parties were about the time prowling around and near the premises, is not the statement of any fact indicating guilt.
    
      L. F. Fish {R. B. Fish, of counsel), for app’lt; Westbroolc & Borst (Z. 3. Westbroolc, of counsel), for resp’t.
   Putnam, J.

The complaint contains a count for false im-

prisonment and also one for malicious prosecution. On the trial the judge submitted to the jury the issue raised by the pleadings as to malicious prosecution, but held that the plaintiff was not entitled to recover for the alleged false imprisonment and withdrew the issues raised by the pleadings in that regard from the jury. The plaintiff excepted to this ruling of the trial judge, and that exception raises the only question in the case. On the complaint of the defendant plaintiff was arrested and imprisoned on a warrant issued by one Rulison, a justice of the peace of Fultonville, Montgomery county. The following is the affidavit on which tbe warrant was issued:

“ Montgomery County, ss.:

Charles Rickard of said county, being duly sworn, says that on the night of October 24, 1891, at the village of Fultonville, town of G-len, said county, his store was burglarized by breaking the large glass in the front door, and entered and goods taken therefrom, to wit: Two or more revolvers and a quantity of cigars, and deponent believes and has reason to believe that store was broken into and burglarized by James H. Swart and Wallace Van Evera and another, from the fact that said parties were about that time (i. e.) after one o’clock that night prowling around; and near the premises.

“ Wherefore, deponent prays that process issue to arrest the said offenders.

“ Charles Rickard.

Sworn to before me, this 21st) day of November, 1891, j

“ H. ÍL Rulison, J. P.”

St. Rep., Vol. LVI. 48

It is urged by the appellant that this affidavit was insufficient to give the justice jurisdiction of the person of the plaintiff, and that hence defendant, who caused his arrest under the warrant, was liable in an action for false imprisonment. We think the affidavit was insufficient to justify the issuing of the warrant. It sufficiently shows the commission of a crime, but fails to allege any fact showing the guilt of the plaintiff and Yan Evera. The allegation that defendant believes and had reason to believe that his store was burglarized by said parties does not establish or tend to establish the charge. The reason stated by defendant for his belief, that said parties were about the' time prowling around and near said premises, is not a statement of any fact indicating their guilt. At the most, the affidavit shows on the part of defendant a suspicion of, and perhaps, grounds for such suspicion against the plaintiff. The case is not unlike that of Blodget v. Race, 18 Hun, 132.

In that case Justice Bockes says (p. 133): “ But before a warrant can lawfully issue for the arrest of the offender the magistrate must have some evidence of his guilt. Facts and circumstances, stated on information and belief- only, without giving any sufficient grounds on which to base the belief, are insufficient to confer jurisdiction as to the person. The magistrate must have evidence of probable cause, both as to the commission of the offense and the guilt of the offender, before he can have jurisdiction to cause the arrest.” To the same effect see People ex rel. Kingsley v. Pratt, 22 Hun, 300-303; Loomis v. Render, 41 Hun, 268; Devoe v. Davis, 12 W. Dig., 544; Comfort v. Fulton, 39 Barb., 56; Miller v. Brinkerhoff, 4 Denio, 118; Vredenburgh v. Hendricks, 17 Barb., 179. In each of the above cases, as in the case under considera.tion, no facts are stated in the affidavit on which a warrant was issued, showing the guilt of the party accused, and hence the magistrate did not acquire jurisdiction of his person. ,

It must be remembered that when there is proof though slight and insufficient, legally tending to establish all the essential facts and the magistrate erroneously issues a warrant, such process can only be avoided by a direct proceeding to set it aside. Miller v. Brinkerhoff, supra, The cases cited and relied upon by defendant were those where there was some evidence given before the committing magistrate tending to support the charge made, and the magistrate erred in issuing a warrant on-the fact, or on the law. They were not cases like this, where in fact there was no evidence given to sustain the warrant See Hewitt v. Newburger, 66 Hun, 230; 48 St. Rep., 811; Pratt v. Bogardus, 49 Barb., 89; Lewis v. Rose, 6 Lans., 206, and other cases referred to by responnent.

The case of Van Latham v. Libby, was where the defendants appeared before a magistrate and made a complaint, stating the facts truly, which the magistrate erroneously held to constitute a crime and issued a warrant. Facts were stated in the case for the consideration of the magistrate and he erred in holding that they constituted a crime. See Miller v. Adams, 52 N. Y., 413.

We conclude that the plaintiff was entitled to go to the jury on the issues raised in the pleadings as to the false imprisonment, and hence that the exception of plaintiff was well taken. It follows that the judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., concurs; Herrick, J., dissenting.  