
    Robert Harland et al., Resp’ts, v. Thomas Howard, App’lt.
    
      (Supreme Court, General Term, First Department
    
    
      Filed June 6, 1890.)
    
    Arrest — Abuse of process.
    Where defendant was forcibly seized by a private detective, without a warrant, for the purpose of detaining him until an order of arrest could be served by the sheriff, and while he was detained on a charge of assault committed while attempting to escape the order of arrest was served, Held, that this was an abuse of process for which the order of arrest should be vacated.
    Appeal from order of the special term, denying motion to vacate an order of arrest granted against the defendant and relieving him from arrest thereunder upon the ground that the arrest, as made, was an abuse of the process of the court
    
      W. J. Gaynor, for app’lt; G. De F. Lord, for resp’ts.
   Van Brunt, P. J.

The ground upon which this motion is based is that one Macdonald, a private detective, forcibly detained the defendant until the sheriff of Kings county could arrest him. It seems to us that this claim is established beyond all question. It is true that it is claimed that the plaintiff’s affidavits, by preponderance of proof, show that no such thing had occurred, and that both Macdonald and Yaxley, the agent of the plaintiff, swear that no compulsion whatever was used and no false pretenses made, but that the defendant went with them voluntarily to the Fulton street police station, and apparently was very anxious to have the officer in charge detain him until the sheriff could come to arrest him, and that after the officer in charge refused to detain him, and he was proceeding with them voluntarily to the jail, he broke away, tripped up Macdonald, striking him so that he fell; that he was thereafter caught by two policemen, arrested, and upon a charge by Macdonald held at the station house for assault A more improbable story has seldom come under the consideration of the court

It bears upon every part of it the stamp of falsity. If Howard was willing to go with these people, why go to the station-house and ask the sergeant in charge to hold him until the sheriff could come there to arrest him ? If these parties were not detaining him, why was it necessary for the defendant to trip Macdonald up and knock him down in order to get out of his custody ? The conceded facts upon the part of Macdonald and Yaxley prove beyond all question that they were guilty of a gross abuse of power, such as private detectives are altogether too prone to indulge in, and for which they should be severely punished. This man undoubtedly represented himself to be an officer, took forcible possession of the defendant, compelled him to go with him, and endeavored to get him held at the station-house until the sheriff could arrest him. If that is not an abuse of any power ever conferred upon him, it is difficult to see how any power could be abused.

It is sought to sustain this arrest upon the ground that because the detention of the defendant upon the crime charged of an assault resulted in his arrest in this action, that, therefore, this motion should not be granted. But, when we find from the very facts of the case, beyond reasonable doubt, that without the slightest semblance of authority this man Macdonald was exercising dominion over the defendant for the purpose of subjecting him to arrest, no such consideration can prevail.

It is said that Howard was convicted of this assault. But how the magistrate could ever have been induced under the facts appearing in this case to convict Howard of assault it is difficult to imagine. But that in no way deprived Howard of the protection of the law; nor could he therefore be permitted to be kidnapped for the purpose of bringing him within the power of the sheriff to serve an order of arrest.

It is urged that even if Macdonald under these circumstances was in Brooklyn only a private citizen and had forcibly held the defendant until the sheriff arrived, that would be no reason why this court should ignore and defeat its own process by discharging the defendant. It must be recollected that a private citizen has no right to interfere with the liberty of another unless a felony has been committed in his presence and the person whose liberty ■is interfered with is guilty of the crime. Ho such condition of affairs existed in this case. It is necessary, in order that an officer .shall be justified in the execution of a civil process, that the right of arrest shall be exercised within his jurisdiction and that he have present with him his authority to make the arrest. And it is a familiar principle that a man has the right to protect his liberty, using all the force necessary.

It is apparent from the' conceded facts that these two men seized forcibly upon the • defendant for the purpose of subjecting him to the execution of this process. We do not think that such procedure can be tolerated in this court. The motion to discharge him from arrest should have been granted and the order of arrest vacated because of the abuse of the process.

The order should be reversed with ten dollars costs and disbursements, and the order of arrest vacated, with ten dollars costs.

Brady and Daniels, JJ., concur.  