
    First Department,
    June, 1918.
    Giovanni B. Canepa, Respondent, v. Lou Mayer, Appellant, Impleaded with Others.
    . Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office, October 11, 1917, upon the verdict of a jury and also from an order entered October 16, 1917, denying a motion for a new trial.
   Per Curiam:

This action was brought to recover damages for false arrest and malicious prosecution. The court instructed the jury in effect as matter of law that appellant was not liable for malicious prosecution, but in instructing the jury with respect to appellant’s liability for false arrest and imprisonment confused the two issues. The only theory on which the appellant could be held liable for false arrest and imprisonment is that he was responsible for the unlawful detention of the plaintiff without any commitment after he had been arrested and brought to the police station on a charge of robbery at the instigation of the other defendants. We are of opinion that the evidence is insufficient to sustain the recovery against appellant on that theory. It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. Present — Clarke, P. J., Laughlin, Dowling, Shearn and Merrell, JJ.; Dowling and Merrell, JJ., dissented. Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  