
    Herbert E. Egleston, Appellant, v. John C. Scheibel and Others, Respondents.
    Second Department,
    June 15, 1906.
    False imprisonment — police officers successively contributing to imprisonment are joint tortfeasors—pleading—when complaint setting out successive acts -of defendants does not improperly unite separate actions in tort.
    All who participate in a false imprisonment are joint tort feasors, although they successively contribute to the tort, and all are liable for the whole trespass from its beginning.
    Hence, a complaint which sets out the facts in extenso and alleges the successive -..acts-of police officers, in imprisoning.the plaintiff, though: unscientific, states .a , . single cause of. action against all and is not subject to demurrer as improperly uniting separate torts by different defendants. , . ....
    Although" such complaint alleges that the acts of the defendants were “willful and concerted ” the action is not made one for a conspiraóy, for conspiracy is . not essential to false imprisonment. ' " - "... "
    Pich,;.Jv, dissented, with opinion.
    Appeal by the plaintiff, Herbert E. Egleston, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 7th day of February, 1905, upon the decision of the court, rendered after a trial at the Westchester Special Term, sustaining the defendants’ demurrer to the complaint.
    
      Elmer P. Smith, for the appellant.
    Francis A. Winslow [ William J. Wallin With. him on the brief], for the respondents.
   Gaynor, J. :

Each defendant demurs to the- complaint on the ground {in' so many words) that" four separate causes of action for false imprisonment, one against each defendant, are improperly united. It is claimed that it alleges,the.doing of four different torts, one by each defendant, instead of bnly one tort by them all. Each also demurs that the complaint does not state facts sufficient to constitute a cause of action against him.

The complaint is for, a false arrest and imprisonment; or, to be exact, for a false imprisonment, for the imprisonment begins at the arrest. Any physical detention is imprisonment. If the complaint were in due and ancient form, viz., a lean allegation that the defendants imprisoned the plaintiff without warrant or cause, leaving the facts to be proved, it would have become our educated profession better and saved all this trouble; but instead it pleads the facts in extenso, which is always unscientific and unwise.

The facts alleged are in substance (1) that the defendant Sclieibel, a policeman, arrested the plaintiff without a warrant in the city-of Yonkers for hawking without a license, whereas he had a license, and took him to-the station house; (2) that the defendant Lent, the sergeant in charge of the station house, locked him up; (3) that the defendant Woodruff, the captain and commander of the police force, was sent for and informed by the plaintiff, of the said facts of his false arrest and imprisonment, but refused to discharge the plaintiff, and detained him all night; and (4) that the defendant Cooley,-.a sergeant of police, took the plaintiff, out of his cell- to .-another room-next morning and “abused” him (how is not stated) and then remanded him to his cell. At the end there is an allegation that the acts of the defendants were “ wilful and concerted,” etc-., but that does not make the action one for a conspiracy, i. e., it is not necessary to make out a conspiracy to maintain.it.

It is elementary that every one who participates in the .commission of a tort is liable for it as a principal. If one is committing», a battery, and another come up and join him in the battery, both" are liable for the whole battery. The plaintiff is not obliged-to divide the battery into parts and sue each for a part. It was not necessary that all of the defendants should have been present at the commencement of the false imprisonment, viz., at the arrest. By after-wards joining in the unlawful imprisonment those not present at the Beginning became liable for the whole trespass ab initio. There was one continuous trespass only, and not several - trespasses. If an.officer falsely arrests a person and -starts with him to the station house, every, officer or other person who joins with- him in the tort at-successive. intervals, and places on the way, and the officer in .charge at the station -house who receives, the arrésted person from -them and locks him -up,.- are :all participants - in the same tort, if liable for tort at alb which .has to be determined on the evidence at the trial in, respect of each. Each is not guilty of a new and separate tort. There is only a single tort and not several torts. In such a case the plaintiff is not obliged to bring a separate action against one or each wrongdoer, making him liable 'only from the time and place of his participation ; indeed, it would often or always, be impossible to make such a division. If it be difficult to find precise decisions for the foregoing, it is only because it has seldom if ever been questioned; but there are decisions bearing on the general principle (Schneider v. McLane, 3 Keyes, 568 ; Dyett v. Hyman, 129 N. Y. 351 ; Livingston v. Bishop, 1 Johns. 290 ; Callahan v. Searles, 78 Hun, 238 ; Gold v. Bissell, 1 Wend. 210 ; Green v. Kennedy, 46 Barb. 16 ; 48 N. Y. 653 ; Coats v. Darby, 2 id, 517 ; Judson v. Cook, 11 Barb. 642 ; Bishop v. Ely, 9 Johns. 294 ; Guille v. Swan, 19 id. 381 ; Elder v. Morrison, 10 Wend. 128). If the complaint had .been, simply that the defendants falsely imprisoned the plaintiff, proof of the facts alleged in the complaint would have made out a case against all of the participants.

It follows that the complaint alleges only one cause of action against the three defendants Scheibel, Lent and Woodruff. It states none against the defendant Cooley, and his demurrer was properly-sustained on that ground. The demnrrers'also allege a union of a cause of action for assault,against the defendant Cooley with one cause of action against all of the other defendants for conspiracy and malicious prosecution. Ho- such causes of action are alleged.

The interlocutory judgment should be reversed, except that it should be affirmed as to the defendant Cooley.

Hirschberg, P. J., Woodward and Miller, JJ., concurred; Rich, J., read for affirmance.

Rich, J. (dissenting):

1 am unable to concur. The plaintiff brought this action against four defendants to recover damages alleged to have been sustained in consequence of their wrongful acts resulting in his arrest and temporary confinement in the police station in the city of Yonkers.

■The defendant Scheibel is alleged to be a police officer, who. arrested plaintiff for the violation of a city ordinance prohibiting the hawking and peddling of merchandise in the streets^ The defendant Lent is alleged to be a sergeant of police in charge of the station house at the time -plaintiff was brought there by Scheibel, who ordered the plaintiff searched and placed ill confinement. The defendant Woodruff is alleged to be a captain of police in charge of the police force of the city, who, -after being informed of the matters connected .with .the arrest of plaintiff and that he was a veteran of the Civil war selling under the authority of a State veteran’s license, refused to set the plaintiff at.-liberty -and continued his imprisonment. The - defendant Cooley is alleged to be a sergeant of police, and is charged with being “ maliciously instrumental in the procurement and continuance ” bf plaintiff’s imprisonment, with knowledge of the facts, and. with wrongful .-and malicious abusé of him while so imprisoned. * ■ .

The complaint alleges, in- separately numbered subdivisions, the separate act of each defendant, and that “ by reason - of the said joint and several acts of the several defendants, the plaintiff, from the hour of his said arrest-until about the hour-of nine a. m. on March-29, 1903, was wrongfully and unlawfully- deprived of his liberty and compelled to remain closely confined with"several other prisoners.” The 8th subdivision is as follows: “That as plaintiff is informed and believes, the acts of said defendants were wilful and concerted, and done either maliciously or knowingly in furtherance of some purpose, personal to one or more of said defendants.”

The defendants each demurred 15 the complaint- upon two grounds: First, that there was ah improper unity óf several causes of action, one being against the defendant Scheibel for false arrest or imprisonment on March 28, 1903, between the hours of seven and eight o’clock p. m. ; one against the defendant Lent for false imprisonment, at a later hour.; one against, the defendant Woodruff for continuing the imprisonment at a yet later hour, and one against the defendant Cooley for continuing the imprisonment on the next day, and for an assault, “ which said causes of action do not affect all of the said parties,” .and one cause of action for conspiracy and malicious prosecution as a, result, thereof. Second, that the. complaint does not state facts sufficient to constitute a cause of action. I think the disposition of these demurrers by the learned justice at Special Term was .correct. It is apparent that the theory of the plaintiff’s alleged cause, of, action is , a,,, conspiracy by and -between the defendants; In -the absence of a conspiracy, the separately alleged causes of .action dó jiot affect all of the parties ;• neither would be liable for the act of the others, and a 'demurrer by each defendant is properly interposed on the ground that there is a misjoinder of the causes of action. (Code Civ. Proc. § 488, subd. 7; Nichols v. Drew, 94. N. Y. 22.) It is no answer that a good cause of 'action is pleaded against each demurrant. ' .

To maintain an action for ■ conspiracy the plaintiff must -allege- and prove an agreement or concert of action of the defendants. In the complaint under consideration no facts are alleged showing an agreement or concerted- action in pursuance thereof by or between any of the defendants. The only relation shown between any of the acts is that they successively followed each other; , the ¡act of' .each defendant was separate and distinct' from that of each of the others; they are not so connected as to establish them to have been the result of any agreement'or concert of action, and are insufficient to constitute a.cause of action for a conspiracy. This condition is not relieved by the allegations contained in subdivision 8, which are only the conclusions of the pleader given without alleging any facts.

1 vote to affirm the interlocutory judgment, with costs.

Interlocutory judgment reversed as to the defendants Scheibel, , Lent and Woodruff, with costs to the appellants, and affirmed as to the defendant Cooley, with costs to the respondent.  