
    William L. Savage, Appellant, v. William McMillan, Appellant.
    
      False imprisonment — arrest of a contractor on a charge of grand la/rceny—when it is without probable cause.
    
    Upon the trial of an action brought to recover damages for false imprisonment of a contractor who, while engaged in removing a school building owned by the city of Buffalo, under a contract which provided that he should have “the benefit of all the materials in the same, with the privilege of using such of the old bricks as the architects deemed suitable,” was arrested on a charge of grand larceny, preferred by the superintendent of the park police, for attempting to regain a portion of such materials which the latter had removed, but who was thereafter honorably discharged, the court may properly charge that, on the question of probable cause, the plaintiff was entitled to recover, and ' that the only question for the j ury to consider was the amount of the damages.
    Appeal by the defendant, William McMillan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 14th day of May, 1898, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 14th day of May, 1898, denying the " defendant’s motion for a new trial made upon the minutes.
    
      C. V. Nellamy, for the appellant.
    
      William L. Jones, for the respondent.
   Hardin, P. J.:

Plaintiff’s complaint alleges that on the 19th of November, 1895, at the city of Buffalo, the defendant, without any warrant or pretense of legal process, caused the arrest of the plaintiff and obliged him to go to the Police Court in that city, some two miles, and that the defendant caused a false charge to be made against the plaintiff, that he was guilty of a felony, without any reasonable cause, or without any right or authority so to do, and that the plaintiff was held under arrest and imprisonment, and was thereby injured, and compelled to procure bail and expend twenty-five dollars for counsel, and that he was held and imprisoned until the 29th of November, 1895, when the defendant again falsely charged the plaintiff with the same offense, and the plaintiff was discharged from custody.

At the opening of the trial the defendant asked the court to compel the plaintiff to elect whether the plaintiff should proceed to trial upon the complaint as for malicious prosecution or for false imprisonment. The court very promptly ruled that the complaint was for false imprisonment, and nothing else.

The plaintiff was a contractor and put in a bid for doing the mason and stone work on the Hasten Park High School, located on Hasten Park, in the city, off of North street. The city had jdans prepared and specifications made for the work. It was conceded on the trial that the city was the owner of Hasten Park. In the contract which the plaintiff held with the city it was provided that he should remove the materials around the old building on the school lot, “ also the fence around the same the mason shall remove at his own expense, and he shall have the benefit of all the materials in the same, with the privilege of using such of the old bricks as the architects deem suitable; and all other of such old material shall be taken entirely from the lot. * * * All earth that may be, in the judgment of the superintendent of buildings, be needed for grading around the building shall be left on the lot, but all other earth and refuse of every kind shall be taken entirely from the lot.”

The contract which the plaintiff entered into with the city bore date the 25th of September, 1895, and immediately after getting the contract lie started to do the work, tearing down the old building and removing the stuff that he could use there, and putting it in piles, and commenced the excavating and laying out land where he had the sand to use, and sought to use what valuable stuff was on the land, and commenced digging and getting ready for the foundations After the plaintiff got fairly at work the defendant appeared on the scene with teams and commenced to remove the stone. A controversy arose between the plaintiff and the defendant in respect to the stone and the materials, the defendant insisting that they belonged to the city and that he was going to take them away. Plaintiff forbade him from taking them away. Defendant took some of them away and piled them up. The plaintiff then took counsel and was advised that he was entitled to the material and stone and sought to take possession of the material, and defendant again appeared upon the scene, making violent accusations against the plaintiff, and the defendant summoned a policeman and directed him to arrest the plaintiff, and he was arrested and taken to the station house by Sergeant Cullen. Plaintiff afterwards got bail and counsel and obtained his honorable discharge.

It was conceded upon the trial that on the 29th of November, 1895, the defendant “ made a complaint in writing in the Police Justice’s Court in this city, charging the plaintiff with the crime of grand larceny, second degree, and that upon the hearing on said charge the plaintiff was discharged by the police justice.”

At the close of the evidence the defendant moved for a nonsuit on the ground that the plaintiff had failed to make out a cause of action. The motion was denied and the defendant took an exception. We think the exception presents no error.

The defendant’s counsel asked to go to the jury on the question of probable cause, and the court replied, “ Oh, yes, you may go to the jury,” and thereupon the court observed : “ On the question of probable cause I am going to hold that the plaintiff is" entitled to recover in this case; that the only question for the jury to consider is the question of damages, which is wholly within their control.” To that general ruling an exception was taken, which we think does not present any error.

In the course of the charge to the jury the learned judge observed: It is sufficient, so far as this case is concerned, to say to you that there was no larceny committed by the plaintiff in his dealing with these stone. There was nothing from which the crime of larceny could be charged fairly, or upon which any such allegation could be based successfully. So that the arrest, which was made by McMillan’s order, he being superintendent of parks and superintendent of the park police, was without- authority, and the defendant is liable for whatever damages the plaintiff sustained by reason of that arrest.”

At the close of the charge the counsel for the defendant excepted to that portion of the charge “ where it says there is no evidence of any crime being committed.” We think the exception presents no error. We have looked at some other exceptions in the case which, we think do not require us to disturb the verdict. The judgment and order should be affirmed.

All concurred, except Ward, J., not voting.

Judgment and order affirmed, with costs. 
      
      
        Sic.
      
     