
    Joseph Davidoff, Respondent, v. The Wheeler & Wilson Manufacturing Co., Appellant.
    (City Court of New York
    General Term,
    November, 1895.)
    Plaintiff purchased a machine of the. defendant, the title to remain in the latter until fully paid for, hut "before frill payment was made it was-transferred, with the consent of defendant’s agent,.to another person. Thereafter, upon failure of further payments, defendant demanded the return of thp machine, and, not receiving it, caused plaintiff’s arrest ' and imprisonment for eight days. In ah action for false im-pi-isonment, held, that such arrest was unlawful and was without probable cause and was malicious; that defendant should have sought redress from ' the holder of the machine. ’
    -Advice of counsel'is .no defense, unless shown to have been given after' a full and fair statement of the facts., ' ■
    ■ Appeal from judgment in favor of the-plaintiff, entered upon a verdict. "
    
      
      Holden c& Allen, for appellant, •
    
      JWccsJibir c5 Gulcor, for respondent.
   Fitzsimons, J.

The testimony on plaintiff’s behalf shows that he purchased a machine from defendant, the title thereto to remain in defendant until fully paid for ; that before the machine was fully paid for he transferred possession thereof to one Eisenstadt, with the consent of the defendant’s agent, one Ludlow, who said: “You can give it (the machine) to the other man.” He then transferred the machine to Eisenstadt, and wrote the defendant to that effect; that subsequently the defendant, failing -to receive further payments upon the machine, demanded its return, and not receiving it caused plaintiff’s arrest and imprisonment for eight days; that lie was then duly discharged.

This version of the difficulty in question the jury evidently believed, and it shows such a wanton and reckless disregard of plaintiff’s rights that, as a matter of law, it followed that in causing the arrest of the plaintiff the defendant acted without probable cause and .with malice, and, therefore, the trial justice was right in refusing to dismiss the complaint:

The defendant, having consented to the transfer of the machine, could not thereafter hold the plaintiff responsible for its whereabouts. If it desired its return for any reason it was defendant’s duty to search for the holder of it, and upon his failure to deliver it up seek the proper legal redress . against such person. In our opinion, under the circumstances of this case, the arrest of the plaintiff was unlawful and was without probable cause and was malicious.

The defendant’s testimony contradicts the testimony sub: mitted by the plaintiff, and the jury evidently believed the plaintiff’s, which they had the right to do, and rendered their verdict accordingly.'

The defendant, in attempting to show that in all it did herein it was guided and acted under advice of counsel for the purpose of justifying its course of conduct, did not do so . in a proper way. In no part of its- testimony does it appear that the defendant fully ■ and fairly stated the facts of the -transaction in .question to its counsel, and after sucli a stated inent procured his advice upon which it acted. Granting that it was upon the advice -of'counsel that the arrest of plaintiff was caused, that surely would not benefit defendant in the least unleás" such advice was given after a full and fair statement of all the facts. No testimony tending; to show such a state of affairs was offered by defendant. What advice counsel gave was of no consequence herein until it Was first shown-that such advice followed, as before stated, a full and fair -statement of the facts, and, therefore, the exceptions taken- at folios 86, 89 are without merit.

The exception taken to the judgels charge' at folio 101 we think was not well taken and. the . judge was justified- in . refusing to charge the request for the reason, as above,

■ státdd, that the .advice of counsel could not benefit the defendant because it (defendant) failed t,o state upon what facts such advice was rendered.

As to the exception taken at folio 108, it was immaterial what defendant believedthe true inquiry for the jury was, did the-defendant believe the plaintiff guilty of the -charge preferred' by-it against him, and was such belief -based itpon reasonable . grounds. Therefore, the request as framed was wrong in law and the refusal to charge it was proper.

The judgment is affirmed, with costs.

Conlan arid McCarthy, JJ„ concur,

Judgment affirmed, with costs..  