
    Andrew J. Wightman, App’lt, v. Augustus N. Brush et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    Convicts — Action nob cbtjbl punishment.
    An action by a convict for. unnecessary and cruel punishment cannot be maintained where the complaint fails to allege that the acts complained of were not in accordance with the regulations of the superintendent, or that they were not necessary for his proper punishment or to secure submission and obedience on his part, or that the same was not administered in accordance with the legal regulations on that subject.
    Appeal from judgment dismissing the complaint
    Action to recover damages for cruel and unnecessary punishment inflicted upon plaintiff while a convict in Sing Sing prison.
    The complaint alleged that defendants, maliciously intending to injure the plaintiff, did begin a course of m pst cruel and unlawful ill-treatment of the plaintiff , and abused and inflicted unnecessary cruel punishment upon the plaintiff. That said ill-treatment and cruel punishment consisted in hand-cuffing plaintiff’s both hands, rendering them useless, then confining him in wet dungeons for a period of eight days; that said dungeons contained no place on which the plaintiff could rest and when exhausted was compelled to lie on the floor in the water; that through the hand-cuffing aforesaid, the plaintiff was unable to assist himself in the calls of nature and was otherwise cruelly, inhumanly and brutally treated. That daring said periods of confinement, the plaintiff received no' food but four ounces of bread with water daily, and on being removed from said dungeons was for a long time placed in solitary confinement.
    That bjr reason of aforesaid abuse and cruel and brutal treatment and unlawful and unnecessary punishment the plaintiff was made sick, sore and lame, and his health permanently impaired from aforesaid ill treatment, and contracted severe and lasting diseases, and suffered from numerous complaints, and injuries to his person, from which he has suffered great pain and agony, and still suffers excruciating pain and trouble, and as he is informed and believes he will never recover from said injuries, and his ill health resulting therefrom will incapacitate him from engaging in any laborious or exhaustive work for the rest of his life, and he will be unable to attend to the duties of his regular profession or business with the same degree of proficiency as before the infliction of these injuries on the plaintiff.
    
      Defendants answered denying each allegation except that plaintiff was confined in Sing Sing prison as a convict, and that he had been confined in one of the cells in solitary confinement, and alleging that immediately prior thereto there had been a grave infraction of the discipline of the prison, and one of the prisoners had escaped through the assistance of other prisoners; that the plaintiff refused to divulge the means by which such escape was effected, and that he was placed in solitary confinement for the purpose of compelling him, if possible, to do so and divulge the names of those who assisted in the escape, and that such confinement was not in excess of the usual methods of preserving discipline in such cases.
    After plaintiff had opened his case, defendants moved to dismiss the complaint on the ground that it did not contain facts sufficient to constitute a cause of action, which motion was granted.
    
      Geo. II. Bruce, for app’lt; Chas. F. Tabor, att’y gen., and Francis Larkin, for resp’ts.
   Pratt, J.

The plaintiff alleges that while he was a convict in state prison the defendants, the wardens and principal keeper, abused and inflicted unnecessary and cruel punishment upon him, and claims damages therefor.

However, the specific acts of cruelty are set out in the complaint and the plaintiff is bound by such allegations, and the demurrer goes no further than to admit such specific acts.

The acts described seem to be authorized by statute if, in the opinion of the warden, it was deemed necessary in order to produce entire submission or obedience of the convict. Sec. 108, 7th Ed., R S., 2617.

It is not necessary to decide that in no case can a convict have his. action for damages for personal injuries inflicted upon him while in prison.

It may well be that if an officer outside the line of his duty should commit a wanton and unprovoked assault upon a prisoner, such officer would be liable to an action for damages. That point we do not decide, as it is not necessary .to a determination of this case. There is no allegation in the complaint that the acts done by the defendants were not in accordance with the regulation of the superintendent, or that they were not necessary for the proper punishment of the plaintiff, or to secure submission and obedience upon his part, or that the same was not administered in accordance with the legal regulations upon that subject.

We think the demurrer was properly sustained and the judgment must be affirmed, with costs.

Barnard, P. J., concurs.  