
    Richard Sippell, Plaintiff, v. Morris Salmowitz, Samuel S. Salmowitz, Max S. Salmowitz, Henry L. Felberbaum, and Jacob Winchel, Defendants.
    (Supreme Court, New York Special Term,
    February, 1908.)
    False imprisonment—Actions — Sufficiency of evidence — Want of probable cause.
    Where the crime of forgery has been committed and the parties injured immediately institute inquiry and obtain information, whose lines converge upon one wlio had previously been in their employ and who, upon being accused, declares that in half an hour he can prove an alibi, and there is sufficient justification for an ordinarily careful and prudent man to cause the arrest of the accused person, a verdict in Ms favor against them in an action for false imprisonment for having caused his arrest should be set aside.
    Motion to set aside a verdict.
    Theodore N. Ripsom, for plaintiff.
    Henry C. Neuwirth, (Leon Kronfeld of counsel), for defendants.
   Goff, J.

When defendants discovered that the silk had been obtained on a forged order they took immediate steps to ascertain the identity of the writer and of the man who presented it. Relative to the one they were told by the firm whose name appeared on the order of the man who had formerly been in their employ and who had access to their stationery, and to the other they received from their employee who delivered the silk a description of the man who waited on the street to receive it. These lines of information converged on the plaintiff, and when accused he declared that in a half hour he could prove an alibi. On request he made a writing and, while comparison of this writing with the forged writing might of itself he inconsequential, yet, when taken in connection with the plaintiff’s remarkable readiness to prove an alibi, the information received and the description given there was sufficient circumstantial justification for an ordinarily careful and prudent man to cause the arrest of the plaintiff. There was no question but that a crime of the grade of felony had been committed, and the defendants were not required to wait until they had secured proof of plaintiffs guilt beyond a reasonable doubt before causing his arrest. It was sufficient if they had probable cause to believe in good faith that plaintiff was the man, even though in point of fact he was not, and eventually it should be shown that a mistake had been made. The responsibility for a false arrest is not determined by the subsequent discharge or acquittal of the accused, but by the existence or nonexistence at the time of reasonable grounds of suspicion supported by circumstances sufficiently strong in themselves to warrant .a cautious man in his belief that- the person accused is guilty of. the offense charged. Anderson v. How, 118 N. Y. 336. The prosecutor may act upon appearances, and if the apparent facts are such that a discreet and prudent person would be led to the belief that the accused had committed a crime he will not be liable for a ialse arrest, even though the accused be innocent. Clark v. Palmer, 116 App. Div. 117. In view of the plaintiff’s discharge by the magistrate his innocence must be presumed, but it does not impinge on that presumption to rule that the weight of evidence and the instructions as to probable cause were either ignored or misunderstood by the jury. On the trial a witness swore that he was employed by the plaintiff to present the fbrged order, that on it be procured the silk and delivered it to the plaintiff. While this could not be controlling on the question of the existence of probable cause at the time of the arrest, it was nevertheless a circumstance to be considered in relation thereto. That the defendants acted only after investigation, and then with prudence, and were justified in believing that they had probable cause in making the accusation was clearly sustained by the weight of evidence, and the verdict against it should be set aside.

Verdict set aside.  