
    Kolzem v. Broadway & Seventh Ave. R. Co.
    (New York Common Pleas — General Term,
    November, 1892.)
    Plaintiff, acting under the authority of a permit issued "by the proper official, and for the purpose of repairing sewer connections, which could not be done in any other way, excavated the street, and thereby unavoidably interfered with the passage of defendant’s cars. For this, and on request and complaint of defendant’s servants, he was, without warrant, twice arrested and brought before a police justice, charged with violating section 436, sub. 3 of the Penal Code. The last time he was found guilty, and fined. He paid the fine, was discharged, and brought suit for false imprisonment.
    
      Held, that the jury were justified in finding that plaintiff had not violated section 436, subd. 3 of the Penal Code, and that the arrest and imprisonment were caused and instigated by defendant’s agents or servants.
    The offense charged being a misdemeanor, and not having been committed in the officer’s presence, plaintiff’s arrest without a warrant was illegal, and rendered the officer liable for false arrest and imprisonment.
    The acts of defendant’s servants were within the scope of their employment, and defendants were liable to plaintiff for the damage caused, jointly with the officer making it, or severally, at plaintiff’s election. The police justice, having no jurisdiction to try the offense charged, the conviction by him was no evidence of guilt.
    "Where the evidence in an action for false imprisonment shows an intentional and wanton invasion of plaintiff’s civil rights, the court may refuse to charge that there is no evidence of malice, and charge that exemplary damages may he awarded if the jury believe that the arrest was accompanied by malice.
    Appeal from a judgment for plaintiff, entered upon a verdict, and from an order denying defendant’s motion for a new trial.
    Action by Michael Kolzem to recover damages for causing his false arrest and imprisonment.
    
      Robert E. Deyo, for plaintiff (respondent).
    
      Root & Clark, for defendant (appellant).
    
      
       Penal Code, § 436, subdiv. 3, provides: A person who willfully obstructs, hinders or delays the passage of any car lawfully running upon, any steam or horse or street railway.
    
   Bischoff, J.

Plaintiff, a plumber, acting under the authority of a permit issued to him by the commissioner of public works, proceeded to excavate the street and roadbed in front of the premises 393 Seventh avenue, in the city of New York, for the purpose of repairing the sewer connections when he was apprehended by a police officer on a charge of having willfully obstructed, hindered and delayed the passage of defendant’s cars lawfully running upon its street railway, which, by section 426, chapter 616, Laws of 1881, Penal Code (Ch. 414, Laws of 1819), is made a misdemeanor. He was taken before a police justice, who first cautioned and then discharged him. On the next succeeding day, while prosecuting his work, plaintiff ivas again apprehended upon a like charge and taken before the same magistrate, who this time adjudged plaintiff guilty, and fined him ten dollars, in default of the payment of which fine he was to be imprisoned for ten days. Plaintiff paid the fine and was discharged from further custody. Thereupon he brought this action to recover damages for his alleged false arrest and imprisonment, and the jury awarded him seven hundred and fifty dollars. From the judgment entered on the verdict,, and an order denying its motion for a neiv trial, on the minutes, defendant has appealed.

It was conceded on the trial that the arrest was in each instance without a warrant, and defendant contended that it was made by the officer in whose immediate presence the alleged misdemeanor was committed, and not at the request or instigation of its agents or servants; also, that the conviction of plaintiff in the police court was evidence of his guilt.

The learned trial judge ruled that the police justice was without jurisdiction and the pretended conviction of no effect. Of the propriety of this ruling there can be no question, since police justices possess only such powers as are specially conferred by statute (Code Crim. Pro. chap. 442, Laws of 1881? § 14), and misdemeanors committed in the city and county of New York must be tried and determined in the Court of Special Sessions, unless the case is directed to be tried in the Court of General Sessions (§ 64).

It remained, therefore, on the trial, to ascertain whether the offense was in fact committed, and whether the arrest was instigated by defendant’s agents or servants, or was made by the police officer acting upon his supposed authority.

Plaintiff testified that he was first arrested upon the direct request of defendant’s time keeper, Seymour, to officer Buchanan, that he be taken into custody upon the charge then and there made. The officer, called as a witness for the defendant, corroborated this. The second arrest, plaintiff said, was made upon the complaint, and at the request of defendant’s roadmaster, Dow, and this was wholly uncontroverted. There was also ample evidence to show that the sewer connections could not have been repaired without making the excavation, and that temporary interference with the passage of defendant’s cars was unavoidable with the exercise of due care on the part of plaintiff and his workmen. The jury were, therefore, justified in concluding that there was no willful obstruction of defendant’s railway, and that the arrest and imprisonment were caused and instigated by its agents or servants.

No offense having been committed in the officer’s presence, or at any other time, he had no authority to arrest without a warrant (People v. Pratt, 22 Hun, 300), and was amenable to an action for false arrest and imprisonment (Boyleston v. Kerr, 2 Daly, 220). The acts of defendant’s servants in causing the arrest, though tortious, having been committed within the scope of their employment, were imputable to defendant (Fishkill Sav. Instn. v. Nat. Bank of Fishkill, 80 N. Y. 162), and it was, therefore, liable to plaintiff as tort feasor for the damage caused by his wrongful arrest, jointly with the officer making it, or severally, at plaintiff’s election.

Evidence that the arrest was made from malicious motives, or without probable cause, was not required to sustain the action, though malice could be shown to aggravate the damage. Marks v. Townsend, 97 N. Y. 590, 597. In an action for false arrest and imprisonment, however, the recovery of punitive or exemplary damages does not depend upon the existence of malice in its ordinary sense. It is sufficient evidence of malice that the arrest was wanton or oppressive, or in open disregard of the plaintiff’s right to personal liberty. Newell on Malicious Prosecution, False Imprisonment & Abuse of Legal Process, § 34, chap, xiv, p. 524; Voltz v. Blackman, 64 N. Y. 440.

Plaintiff testified that before the excavation had progressed sufficiently to interfere with defendant’s railway he was threatened with arrest unless he desisted from such interference, as defendant intended to make a “test” case to secure the judicial interpretation of the statute. His subsequent arrest and imprisonment were, therefore, not due to inadvertence, or the result of an innocent error, though the manner in which it was caused was a mistake. The facts testified to also indicated an intentional and a wanton invasion of plaintiff’s civil rights, and the trial judge, therefore, properly refused to charge that there was no evidence of malice, and properly charged that the jury could award punitive or exemplary damages, if they believed that the arrest was accompanied by malice. Wood’s Law of Master & Servant, § 323, p. 659.

The judgment and order appealed from should be affirmed, With costs.

Brady, Ch. J., and Pryor, J., concur.

Judgment affirmed.  