
    Thomas Barry, Appellant, v. The Third Avenue Railroad Company, Respondent.
    
      Action for malicious prosecution—proof of a judicial proceeding is essential.
    
    Proof that a passenger on a street car was, at the instance of the conductor, illegally arrested by a policeman having no warrant for his apprehension; that he wTas taken before a police justice and, no complaint being made, w.as discharged, will not support an action by the passenger against the railroad company for malicious prosecution.
    In such a case, no judicial proceeding having been begun, .the essential element of an action for malicious prosecution is wanting.
    
      Semble, that the remedy is by an action for false imprisonment.
    Appeal by the plaintiff, Thomas Barry, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 25th day of May, 1899, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      L. Laflin Kellogg, for the appellant.
    
      Eugene Treadwell, for the respondent.
   Rumsey, J.:

At the opening of the trial the plaintiff elected to proceed for malicious prosecution, and not for false imprisonment. At the close of the plaintiff’s case the court dismissed the complaint upon the ground that the arrest was illegal, and that the conductor who asked the officer to make it was not acting within his authority, and also for the reason that the proof did not establish facts necessary to make out a case of malicious prosecution.

The plaintiff’s testimony was to the effect that on the 3d of June, 1898, he took passage on a car belonging to the defendant, and to pay his fare gave to the conductor a quarter of a dollar, and received" two ten-cent pieces in change. As he sat there another' passenger got on the car and also gave to the conductor a twenty-fi ve-cent piece to pay his fare. After a short time this passenger asked the conductor for his change, but the conductor claimed that he had given the change of the other passenger to Barry, and insisted that Barry should pay it to him. Thereupon there arose a dispute between the parties, which resulted in the conductor' calling a policeman and having Barry arrested. The policeman, accompanied by the conductor, took the plaintiff to the station house, where, after some delay, he was brought.before a police justice, but no complaint was made and lie was discharged.

We do not think that, upon this evidence, an action for malicious prosecution can be maintained. There is no doubt that the arrest of the plaintiff made by the policeman at the request of the conductor was utterly illegal. - An officer may arrest without a warrant for a crime committed or attempted in his presence, or for a felony committed by the person arrested, though not in his presence, or where a felony has been in .fact committed and he has reasonable cause to believe that the person arrested committed'it. (Code Crim. Proc. § 177.) The case did not come within this section in any of its subdivisions, because nothing criminal had been done or attempted in the presence of the officer; and the charge against the plaintiff, if it were a crime at all, was only a misdemeanor. Such an arrest would undoubtedly afford a good ground for an action for false imprisonment against the officer who made the arrest; but the mere fact of an illegal arrest and detention is not sufficient to sustain an action for malicious prosecution. The essential element of that action is. that a judicial proceeding lias been begun and carried on maliciously and without probable cause- and has resulted in the discharge of the plaintiff. Unless the arrest is followed by some sort of a judicial proceeding there can be no malicious prosecution, and the.plaintiff must seek his remedy in an action for false imprison-, ment. (Brown v. Chadsey, 39 Barb. 253 ; Newell Mal. Pros. 10; Cooley Torts [2d ed.], 195, 208; Murphy v. Martin, 58 Wis. 276, 279.) The evidence in this case affirmatively shows that no such thing took place. It is quite true that the plaintiff was arrested by the policeman, and that he was taken before a Police Court. But an illegal arrest, such as this was, without a warrant, is clearly not a commencement of a judicial proceeding. That can only take place where, having been brought before a judicial officer, a charge is made which, if true, would result in a conviction of the plaintiff, or in damages against him. Nothing of the kind took place here. The plaintiff swears that when the" parties were before the-justice no complaint was made against Mm and he was at once set free. There was, therefore,, a failure to establish an essential element of an action for malicious prosecution. For that reason the conclusion of the court below was correct, and the judgment must be affirmed, with costs.

Yah Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred. •

Judgment affirmed, with costs.  