
    ■Forest D. Philips, Respondent, v. Cornelius Leary, Appellant.
    Second Department,
    July 24, 1906.
    Venue — false imprisonment—when police officer not entitled to change of venue to county where arrest was made—when arrest by police officer without warrant not justified—power of arrest in city of New York.
    A police officer sued for false imprisonment, whose answer does not allege facts showing that the arrest was made in virtue of his office, is not entitled to a change of venue so that the trial may be had in the ebunty where the arrest was made, as provided in subdivision 3 of section 988 of the Code of Civil Procedure.
    A police officer is not justified either by common law or by statute in making an arrest without warrant merely because the person arrested was acting “in a suspicious manner.”
    (Per Gaynor, J.): The provisions of the charter of the city of New York giving police officers “all the common-law and statutory powers of constables ” gives them.only the existing statutory powers, for the charter refers to the common law as codified and expressed by statute.
    Appeal by the defendant, Cornelius Leary, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Dutchess on the 21st day of May, 1906, denying the defendant’s motion for a change of venue.
    
      John F. O'Brien [Theodore Connoly and John J. Delany with him on the brief], for the appellant.
    
      Joseph Morschauser [Adelbert Haight with him on the brief], for the respondent.
   Miller, J.:

The action is for false arrest in the county of Hew York, and the defendant, a police officer of the city of Hew York, seeks a change of the place of trial to said county, alleging that he is sued for an act done “ in virtue of his office.” The complaint makes no mention of the fact that the defendant was such officer, and the justification for the arrest pleaded in the answer is that the plaintiff was acting in a suspicious manner. It is not alleged that the defendant had a warrant; that the plaintiff had committed or attemptéd to commit a crime in his presence; that the plaintiff had committed a felony, or that a felony had been committed, and that the defendant had reasonable cause for believing that the plaintiff had committed it (See Code Grim. Proc. § 177); nor is it even alleged that the defendant had reasonable ground to believe that the plaintiff had committed or was about to commit a felony. The appellant contends that a police officer in the city of Hew York has all the powers conferred upon peace officers by statute, and in addition such powers as they possessed at common law before their powers were defined by statute. It may be conceded that at common law for a crime not committed in his presence a constable could justify an arrest without a warrant by showing reasonable ground for believ-. ing that the person arrested either had committed or was about to commit a felony, whereas a private individual had to show that a felony had in fact been committed. (Burns v. Erben, 40 N. Y. 463; Newman, v. N. Y., L. E. & W. R. R. Co., 54 Hun, 335.) But it is not pretended that at common law an officer could justify an arrest merely because he thought the person arrested • was acting -in a suspicious manner. It is unnecessary, therefore, to consider the interesting question presented by the appellant whether police officers in the city of Hew York have greater powers than peace officers in other parts of the State. The only question, then, requiring determination on this appeal is whether a defendant can claim the benefit of subdivision 2 of section 983 of the Code of Civil Procedure, where the act for which he’is sued was confessedly done without any authority whatever. Of course, a defendant need not. establish a defense to claim the benefit of said statute, because one may be a wrongdoer though acting in virtue of his office. (Murphy v. Callan, 69 App. Div. 413.) The defendant may have acted colore officii, but not virPute offieii, for, 'as said by the learned justice at Special Term, “when the, act of the defendant is of such a nature that his office gives him no authority to do it, it cannot be said that the act was done ‘virPute officii’ (Brown v. Smith, 24 Barb. 419).” (See, also, Green v. Rumsey, 2 Wend. 611.) In any view x of the case the place of trial should not be changed upon an answer which does not contain facts sufficient to constitute a defense; the motion was properly denied and the order should be affirmed.

Hirschberg, P. J., Hooker and Rich, JJ., concurred; Gaynor, J., concurred in separate memorandum.

Gaynor, J. (concurring):

Some inadvertent judicial utterances got quite far away from the common law in respect of the right of arrest, and a close examination of the older authorities seems to show that section 177 of our Code of Criminal Procedure only restored the safeguarding common-law rule, discarding all loose utterances, instead of changing it. Nor should we even seem to acquiesce, it seems to me, in the suggestion that the police of New York 'city have any right of arrest not conferred by the Code of Criminal Procedure. Police officials there have assumed too much power already, as the present ease only shows again, and on the slightest doubt or hint might, assume even more. The old provision of New York city charters (now in section 337 of the present charter) that the members of the police force shall possess “ all the common law and statutory powers of constables,” refers to the common law for the time being, and as it is changed from time to time. Its "re-enactment in the new charter did not enlarge its meaning. It does not refer to the common law before it was changed or defined by statute, and confer all the powers of arrest that were possessed by constables under it, plus all additional powers of arrest (if any) conferred by statute. If the statute has given any additional power, they have it, and if it has taken any away they have lost it. In a word, the charter provision refei‘s to the “law” as it is from year to year, under common and statute law combined and construed together, until the whole subject should be taken unto itself by the Legislature, when the common law would be entirely superseded by statute, which is the case in this State.

Order affirmed, with ten dollars costs and disbursements. 
      
      Laws of 1901, chap. 466.—[Rep.
     