
    James K. Magagnos, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    October 22, 1908.
    Damages—false imprisonment by servant—malice essential to punitive damage — erroneous charge.
    A master is not liable in punitive damages for false imprisonment- caused by a servant, unless the latter acted with malice and the master shared therein.
    The existence of malice is a question for the jury, and even if found an award of punitive damage is in their discretion.
    Hence, it is error - to charge that a jury in its discretion may award punitive damages against a master if it find that he ratified a false imprisonment by a servant, if there'be no instruction tliat punitive damages can only be based upon a finding of malice.
    An award of smart money cannot be based upon the recklessness or wantonness of the defendant, except as they justify á finding of malice.
    Hooker, J., dissented.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of January, 1908, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 11th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      D. A. Marsh [ George D. Yeomans with him on the brief], for the appellant.
    
      Chase Mellen, for the respondent.
   Gaynor, J.:

An employe of the defendant arrested the plaintiff for shoving passengers as they were entering one of its cars, thereby causing a woman to be thrown down, as he charged. The magistrate discharged the plaintiff, and this is an action for damages for false arrest against the company only. The learned trial judge charged the jury that the case was not one for smart money damages against the company, but being requested by counsel for plaintiff he afterwards charged that if the defendant “ratified what had been done by their employe, then you may, if you think it is necessary, add something to the compensation by the way of punishment to the defendant for doing wrong.” And farther: “ you are not bound ever to add anything by way of punishment. You only may do it if you think it is wise to do it; if you think that for any public reason it is wise to punish the defendant beyond making it make the plaintiff whole.” This was error. Smart money may only be given for malice. Whether the defendant could be mulcted in smart money depended on whether its employe acted through malice, and not then unless it shared therein (Cleghorn v. N. Y C. & H. R. R. R. Co., 56 N. Y. 44; Voltz v. Blackmar, 64 id. 440; Muckle v. Rochester R. Co., 79 Hun, 32; Craven v. Bloomingdale, 171 N. Y. 439 ; East v. B. H. R. R. Co., 115 App. Div. 683); and the jury were not instructed on the head of malice at all. The jury were not at liberty to give smart money unless • such malice existed. Malice is proved in such cases by showing that the tort was committed to gratify some actual grudge or ill will, or by showing that it was committed recklessly or wantonly, i. e., without regard to the rights of the plaintiff, or of people in general. It is not enough that a wrong was done; it must have been done maliciously. It is sometimes inadvertently said that smart money may be given for malice, or for recklessness or wantonness, instead of saying that malice may be found from recklessness or wantonness, as well as from grudge or ill will. It is for the jury to say whether malice existed, and it is always discretionary with them whether they shall give smart money damages or not, even though they find malice. Instead of making the giving of smart money depend on whether there was malice, the learned trial Judge made it depend only on whether the defendant ratified the false arrest, and whether the jury thought that “for any public reason it is wise to punish the defendant ”. A defendant may not be punished by smart money damages on any loose ground, but only for malice.

The judgment should be reversed.

Woodward, Jenks and Rich, JJ., concurred; Hooker, J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  