
    CHARLES M. FROST, Respondent, v. JOHN F. DE LURY, Appellant.
    
      Trial, conduct of—Evidence, non-objection to prior evidence, effect on objections to subsequent questions in the same line—False imprisonment, promoter of, when liable for acts and omissions of jailer.
    
    On the trial of this action for false imprisonment plaintiff was allowed to testify without objection, that he sent his child and wife to her father’s house, and to give testimony to the effect that this resulted from his arrest. He was then asked, “How long was she at your father’s house ? ” A general objection to this question was overruled. Held, that if the question was objectionable in itself, the defendant by not objecting to the matter immediately preceding, made it legitimate testimony.
    The plaintiff, having testified that after he was locked up he made an effort to get the .attention of somebody,- was asked, “What did you do?” an objection to which was overruled. He answered, “I rattled on the door, made all the noise I could to attract attention. There was no heed paid to it by any one.” Held, that as the answer described a usual concomitant of an imprisonment, and did not imply that the jailer’s omission was a personal wrong on his part, there was no error in the admission of the evidence.
    Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided December 30, 1886.
    Appeal by defendant from judgment entered on verdict of jury and from order denying motion for new trial.
    
      Action for damages for malicious prosecution and false imprisonment.
    The facts appear in the opinion.
    
      Howe & Hummel, attorneys, and of counsel for appellant, on the questions considered in the opinion, argued:
    I. It was error to permit plaintiff to show that in consequence of being out of employment he was compelled to send his wife to her father’s, and was deprived of her society for ten months. Even if the plaintiff’s sending his wife to her father’s house tended to show damages, no such damages were claimed in the complaint, and therefore could not be proved on the trial (Moloney v. Dows, 15 How. Pr. 265; Jutte v. Hughes, 67 N. Y. 271; Parsons v. Sutton, 66 Ib. 96 ; Vanderslice v. Newton, 4 Ib. 132 ; Stevens v. Rodger, 25 Hun, 54 ; Havemeyer v. Fuller, 60 How. Pr. 316 ; Barnard v. Benoind, 19 Alb. L. J. 77 ; Squire v. Gould, 14 Wend. 159 ; Strang v. Whitehead, 12 Ib. 64). Even if this was an element of damages, the damages are too remote (2 Greenleaf Ev. § 256, 13th ed.; Hoey v. Felton, 31 L. J. R. [N. S.] C. P. 105 ; 5 Law Times [N. S.] 354; 11 C. B. [N. S.] 142 ; Sedg. Measure of Damages, § 84, notes 1 and 2; Brown v. Cummings, 7 Allen, 507; Knight v. Wilcox, 14 N. Y. 413). This evidence cannot be considered harmless. It must have been considered by the jury in assessing cLefendant’s damages; and besides, it tended to arouse the prejudices and awaken the sympathies of the jury, and where such is the probable or even the possible effect of the admission of illegal evidence, it will be ground for reversal (Carroll v. Diemel, 95 N. Y. 252 ; O’Hagan v. Dillon, 76 Ib. 170 ; Anderson v. Rome, W. & O. R. R. Co. 54 Ib. 341; Brague v. Lord, 67 Ib. 499 ; Baird v. Gillett, 47 Ib. 186; Worrall v. Parmelee, 1 Ib. 519; Ayres v. Water Com’rs, 22 Hun, 299).
    II. It was error to permit the plaintiff to testify to the conduct of the prison officials towards him after he had been committed by the magistrate. The defendant had no control over the authorities in charge of the prison. They were city officials. He had given no instructions to these officials, and it did not appear that the defendant ever had any knowledge of the plaintiff’s place of confinement. It is well known that all prisons are conducted in pursuance of certain rules, and by law it is the duty of the magistrate to afford to every person brought before him an opportunity to send for counsel, &c. (Code Crim. Pro. § 189). If the magistrate or any of the prison officials violated this duty and refused this permission to the plaintiff when in their custody, surely the defendant could not justly be held accountable for their misdeeds. In actions for false imprisonment and like cases, jurors are apt to be led into finding verdicts by prejudice on the one hand or sympathy on the other, and it is well settled that in all cases, and especially in cases of false imprisonment and other actions of that class, all illegal evidence which tends to awaken the sympathies or arouse the prejudices of a jury cannot be considered harmless (See authorities cited on this head under Point I).
    
      William L. Clark, attorney, and of counsel for re- • spondent.
   By the Court.—Sedgwick, Ch. J.

The defendant had caused the arrest of the plaintiff without warrant. The plaintiff was the clerk of the defendant. The charge was that the plaintiff had stolen or embezzled about $19 from the defendant. The plaintiff was duly tried and was acquitted.

On the present appeal two exceptions may be noticed. The plaintiff, as a witness, testified without objection from defendant, that he sent his wife and child to her father’s house in consequence of the arrest, because he did not have sufficient means to support them, and that this was occasioned by his dismissal from the defendant’s employment and being unable to obtain any other lucrative employment. Then was asked the question, “ How long was she at your father’s house ? ” There was a general objection, which was overruled. If the question were objectionable in itself, the defendant had hy not objecting to the matter immediately preceding, made it legitimate testimony, leaving as the only inquiry on the question objected to, whether that question was calculated to make more specific the preceding testimony. If the defendant meant to turn the attention of the court to the inadmissibility of the earlier testimony, it should have been done in a specific way.

The other exception was taken after the plaintiff had testified that after he was locked up, he made an effort to get the attention of somebody. He was then asked, “What did you do?” The witness answered, against defendant’s objection, “ I rattled on the door, called and made all the noise I could to attract attention. There was no heed paid to it by any one.” The reason urged for the inadmissibility of the answer is, that the defendant was not responsible for the omission of the jailer to go to the plaintiff. The defendant was responsible for the damages flowing from the imprisonment and its usual concomitants, and the answer described such an imprisonment. It does not imply that the jailer’s omission was a personal wrong on Ms part.

The defendant’s counsel did not on the trial or on the appeal, meet the point of whether a party charged as plaintiff was could be legally arrested without warrant.

The defendant was not entitled to a new trial on any ground taken by the motion for a new trial.

Judgment and order appealed from affirmed with costs. ‘ •

Htg-bahlam, J., concurred.  