
    Anthony Smith, Respondent, v. Bell and Fyfe Foundry Company, Appellant.
    Second Department,
    June 12, 1908.
    False imprisonment — deposition sufficient to give jurisdiction — result of. prosecution and probable cause immaterial.
    An action, for' false imprisonment cannot be maintained either against a magistrate or the complainant where the deposition upon, which the warrant issued " stated facts sufficient to give jurisdiction to the magistrate by,presenting,, even in a slight degree, a question upon which the judicial mind was called to \ act in determining whether a crime had been committed by the person charged.
    
      Deposition upon which a warrant of arrest was issued for a violation of subdivision 10 of section 689 of the Penal Code by damaging an engine with intent to destroy and render it useless, examined and held, sufficient to give jurisdiction to the magistrate to issue the warrant.
    It is immaterial that upon the criminal prosecution no proof was made that the plaintiff had shifted the lever of the controller of electrical machinery as charged in the information and that the only act proven was the removal of . some fuses which he claimed to own, thus preventing the operation of the' machinery, for the recovery in an action for false imprisonment depends offiy upon whether the magistrate had jurisdiction to issue the warrant on which the plaintiff was arrested.
    So too it is immaterial that the plaintiff was discharged on the hearing or that he had committed no crime, or that, the magistrate by issuing the warrant erred ■ in judgment making it irregular or void, for neither the magistrate nor the complainant are liable for a false imprisonment if the deposition be sufficient to give j urisdiction.
    The fact that the complainant had no probable cause, to believe the plaintiffi guilty of a crime is no defense to an action for false imprisonment, being pertinent only in actions for malicious prosecution.
    ■ Appeal by the defendant, the Bell and Fyfe Foundry Company, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 22d day of November, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the-29th day of November, 1907, denying the defendant’s motion for a new trial made upon the minute's.
    
      George Tiffany, for the appellant.
    
      John B. Merrill, for the respondent.
   Rich, J.:

The action is brought to recover damages for false imprisonment, and the main question presented for our consideration is whether there are sufficient facts stated in the information or deposition upon which the warrant issued to. give jurisdiction to the magistrate issuing it, for if, even in a slight degree, it ■ presented a question upon which the judicial mind was called to act in determining whether a crime had been committed by the person charged, the magistrate had jurisdiction, the warrant Was valid and an action for false imprisonment could not be maintained either against the magistrate or complainant. (Swart v. Rickard, 148 N. Y. 264; People ex rel. Perkins v. Moss, 187 id. 410 ; Gilbert v. Satterlee, 101 App. Div. 313.) It is provided' by the Code of Criminal Procedure that the deposition upon which a warrant may issue “ must set. forth the facts stated by the prosecutor and his witnesses tending to establish the commission of the crime and the guilt of the defendant;” ' (§ 149.) “ If the magistrate be satisfied' therefrom that the crime complained of has been • committed and that there is reasonable ground to believe that the defendant has committed it, he must issue .a warrant of arrest.” (§150.) The deposition upon which the warrant issued, under which the plaintiff was. arrested,, so far as its averment of the' commission of an act is concerned, is positive. It was made by the secretary of defendant and is supported in part by the affidavit of one George Coates Toop, an employee of defendant. It states that “ one Anthony Smith' * * * wilfully and with intent to render useless part' of the machinery of said' company, to wit, an electric generator set, * * * without the knowledge - and authority of ■ deponent or any person in authority in said foundry did shift a lever on' the controller of the said electrical power machinery, rendering said motive power inca- . pable of performing its usual and necessary function's.” The deposition then states declarations of Smith made to the witness and Toop tending to show the willful and malicious character of the act.

There can be no question but that the facts presented to the magistrate complied with the requirements of the Code of Criminal Procedure, and presented a quéstjon upon which the mind of the magistrate was required to act in determining whether a crime had been committed and whether there was reasonable' ground to believe " that Smith had committed it. The deposition states that the act set forth was in violation of subdivision 10 of section 639 of the Penal Code, which section so far as applicable to the case- under consideration is as follows: “ A person who willfully or maliciously displaces, removes, injures or destroys * "* * ” or who (subd. 10) destroys or damages with • intent to destroy or render useless any engine, machine, tool or implement intended for use in trade or husbandry, is punishable by imprisonment for not more than two years.” In determining the sufficiency of this deposition it must be kept in mind that the proceeding before the magistrate is attacked collaterally, and, therefore, that great latitude of construction should be indulged in (Swart v. Rickard, supra, 269), and we think that within the provisions of the section quoted the deposition sufficiently stated the commission of a crime.

It is contended that no proof was made upon the hearing before the magistrate, or upon the trial of this action,, that the plaintiff herein had at any .time shifted any lever on the controller, but that the only act proven to have been committed by him was the removal of some fuses, claimed to have been his individual property, which prevented the operation of the machinery. This is entirely immaterial in this action in which the right of the plaintiff to succeed is limited to the determination of whether the magistrate had jurisdiction to issue the warrant under which the plaintiff was arrested. Although it may be true that upon the hearing failure to prove the specific crime charged, with proof of different acts committed by the plaintiff constituting the same offense, led the magistrate to the conclusion that- the plaintiff should be discharged, neither this'fact nor the fact that the person charged had committed no crime, or that the magistrate issuing the warrant erred in judgment, made the warrant irregular or void, or rendered either the magistrate issuing it or the complainant upon whose deposition it was issued liable for its issuance or plaintiff’s arrest under it in an action for false imprisonment. (Marks v. Townsend, 97 N. Y. 590; Gilbert v. Satterlee, 101 App. Div. 313.) Notwithstanding this the fact remains that the deposition stating facts tending to show the commission of a crime by the defendant, was sufficient to vest jurisdiction in the magistrate to issue the warrant under which plaintiff was arrested, and this furnishes a complete defense to the defendant in this action.

The question of whether the defendant had probable cause to believe the plaintiff guilty of the crime charged is foreign to the determination of the question here. While such question is a factor in determining the rights and liabilities of parties in an action for malicious prosecution, it has no pertinency in an action for false imprisonment, in which the rights and liabilities of the parties rest wholly upon the determination of the question whether the magistrate issuing the warrant under which plaintiff was arrested had jurisdiction. It-follows, therefore, that this action Cannot be maintained.. ' •

The judgment and order should be reversed and a new trial ordered, costs to abide the event.

Woodward, Jenics, G-aynor and Miller, JJ., concurred..

Judgment and order of the County Court .of Queens county reversed and new trial ordered, costs to abide the event.  