
    Richard Cousins, Respondent, v. Edward J. Swords, Appellant.
    
      Complaint —for false imprisonment, it must be alleged to have been illegal or procured without a warrant—for malicious prosecution, a want of probable cause must be alleged.
    
    A complaint, in an action for false imprisonment, is defective which does not allege.either that the imprisonment of the plaintiff was illegal or was procured without a warrant.
    A complaint which states that the plaintiff was arrested, that the arrest was caused by the defendant, and that upon the trial there was no sufficient cause to believe him guilty, and that he was discharged, does not show that the defendant may not have been arrested upon a warrant which was duly issued.
    In an action for malicious prosecution the plaintiff must allege and prove that there was no probable cause for the prosecution, and that it was instituted through malice, and a mere allegation that the defendant maliciously charged the plaintiff with crime does not relieve the latter from, alleging a want of probable cause; an allegation that the charge was false and that the plaintiff was acquitted is not enough.
    Appeal by the defendant-, Edward J. Swords, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling his demurrer to the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 8th day of December, 1896, directing the entry of said judgment.
    The complaint in this action alleged:
    “II. That the defendant resides in the City of New York, and on the 8th day of August, 1896, the defendant maliciously, corruptly and falsely charged the plaintiff with a crime or misdemeanor in the words and figures following: ‘That Richard Cousins did unlawfully and willfully (torture) a certain animal, to wit: a horse, under the following circumstances, to wit: said deponent on said date saw the said defendant (the plaintiff) double the lash of his whip and beat the said horse around the body, thereby causing the said animal unjustifiable physical pain and suffering.’ That the defendant after making the said malicious, corrupt and false charge, went to the police station on West 125th Street, in the City of New York, and lodged the said complaint before the officer in charge, and then and there caused the immediate arrest of the plaintiff on the said charge, and the plaintiff was thereupon arrested and lodged in the said station house, and there deprived of his liberty on the said charge.
    “ III. That on the 9th day of August, 1896, the said plaintiff was produced in the 5th District City Magistrates Court, in the City of New York, and the defendant then and there appeared and made the said charge under oath, and then and there caused the plaintiff to be charged with the said crime or misdemeanor, and demanded that he be dealt with according to law, and especially to Title XVI of the- Penal Code of the State of New York, and be then and there deprived of his liberty.
    “IY. That .'on the 10th day of August, 1896, the plaintiff was before the said City Magistrates Court, 5th 'District, in the City of New York, on examination for said, crime or misdemeanor on' said charge, and there being, no sufficient cause to believe- the plaintiff guilty of the offense mentioned, the magistrate presiding in said Court ordered him discharged, and! the , plaintiff was therefore restored to liberty, and the proceedings thereupon terminated.
    “ Y. That from the 8th day of August, 1896, to the 10th day of August, 1896, the plaintiff suffered great bodily pain and mental anguish, worry and grief, and was imprisoned and restrained several hours on the 8th day of August, 1896;, before bail could be given; and again on the 9th day of August, 1896, he was imprisoned and restrained in his liberty several hours1 before he could procure bail, without just cause or provocation, and was all the time wholly innocent of the offense charged, and so imprisoned, restrained and1 detained by reason of the said charge by the defendant maliciously, corruptly and falsely made, and with the purpose and intent to injure the plaintiff in his body'.and mind and liberty.
    “ YI. That by reason of the premises, the plaintiff suffered damages in the sum of Ten thousand dollars.”
    
      William 11. Sage, for the appellant.
    
      W. B. Donihee, for the respondent.
   Bumsey, J.:

It is not certain whether this action is brought to recover damages for false imprisonment of the plaintiff or for malicious prosecution, but in neither aspect of the case do we think that the complaint can . be sustained. .

If it was intended to sue for the false imprisonment the complaint is manifestly defective, because there is no allegation in it that the imprisonment of the plaintiff, which it is said was procured by the . defendant, was illegal, or was procured without a warrant. One of these things it is necessary to allege. (Addison on Torts [Wood’s ed.], *147)

It is claimed that the act of the defendant was a trespass, and that he was, therefore, necessarily liable for it. But it was not trespass on the part of the defendant to make a complaint against the plaintiff, nor was it any trespass against him to cause his arrest, unless that arrest was for some reason illegal. There was no allegation of this kind. All that was said on the subject in the complaint is that the plaintiff was. arrested, and that the arrest was caused by the defendant, and that upon the trial there was no sufficient cause to believe him guilty and he was discharged. But every word of this may be true, and yet it may be equally true that this arrest, brought about by the complaint of the defendant, was made upon a warrant which was duly issued. If it was so made, there was no false imprisonment, and there is no presumption that it was not so made. The plaintiff is bound to allege in his complaint the facts from which it will appear that his arrest was illegal. In this case, not only does he not allege those facts, but he does not even aver as a proposition of law that his arrest was not perfectly legal.

Neither can the complaint be sustained as an action for malicious prosecution. To sustain such an action, it is necessary that the plaintiff should allege and prove that there was no probable cause for the prosecution, and that it was instituted through malice. (Thaule v. Krekeler, 81 N. Y. 428.) It is stated in the complaint that the defendant maliciously.charged the plaintiff with the crime, but there is nothing from which it can be inferred that that charge was made without any probable cause. Whatever weight may be given upon the trial to the fact that the charge was false, and that the plaintiff was acquitted, the 2>laintiffis not relieved, because of the allegation of those facts in the complaint, from the necessity of alleging that there was no probable cause for the prosecution against him.

For these reasons the judgment overruling the demurrer must be reversed, and judgment given for the defendant upon the demurrer, with costs, with leave to the 2)laintiff. to amend his complaint in twenty days on payment of the costs in this court and of the demurrer in the court below.

Yan Brunt, P. J., Barrett, Williams and Patterson, JJ., concurred.

Judgment reversed, and judgment -ordered for the ¡defendant on •the demurrer, with costs, with leave to plaintiff to amend his complaint in twenty days on payment of the costs in this court and of the demurrer in the court below.  