
    (13 Misc. Rep. 329.)
    WARREN v. DENNETT et al.
    (City Court of New York, General Term.
    June 25, 1895.)
    False Imprisonment—When Action Lies.
    An action for false imprisonment can be maintained only where the arrest was unlawful.
    Appeal from trial term.
    Action by Jason W. Warren against Alfred W. .Dennett and Thomas Tynan. There was a judgment in favor of plaintiff, and defendants appeal.
    Reversed.
    Argued before NEWBURGER and CONLAN, JJ.
    Shafer & Burt, for appellants.
    George E. Wentworth, for respondent.
   NEWBURGER, J.

This action is brought to recover damages for false imprisonment. The defendant Dennett, on the 22d day of May, 1893, was the proprietor of an eating house on Park Row, this city; and the defendant Tynan was his manager in charge, Dennett being in California at the time. On that date the plaintiff entered the establishment, and partook of food to the extent of 40 cents’ worth as is claimed by the defendants, but to the extent of 30 cents’ only as claimed by himself. On the refusal of the plaintiff to pay the additional sum, or 10 cents, demanded, the defendant Tynan summoned an officer, and caused the plaintiff’s arrest. The plaintiff was taken to a police station, where Tynan preferred a charge of disorderly, conduct against him, whereupon the plaintiff paid the additional 10 cents, and was released.

On the trial, after the opening of the case, at the close of the plaintiff’s testimony, and before the submission of the case to the jury, the defendants moved to dismiss the action, upon the ground that there was no evidence that the arrest complained of was unlawful, which motion was denied. We think the trial justice erred. The plaintiff had a right to combine the two causes of action—one for malicious prosecution, and another for false imprisonment—in one complaint. Marks v. Townsend, 97 N. Y. 590. But at the trial the plaintiff declared that the action was for false imprisonment only. It is well settled that the action for false imprisonment can only be maintained where the arrest was unlawful, and without authority of law. Cunningham v. Electric Light Co. (Super. N. Y.) 17 N. Y. Supp. 372. As far as the complaint and evidence show, the arrest was lawfully effected.

Without considering any of the other questions raised, the judgment appealed from must be reversed, and a new trial granted, with costs to the appellants to abide the event.  