
    Antonio Giorgio, Respondent, v. H. Batterman, Appellant.
    Second Department,
    October 8, 1909.
    Malicious prosecution — facts showing probable cause—false imprisonment— arrest without warrant.
    Where a watchman in a drj' goods store saw a fellow-watchman steal certain articles of clothing, which he found upon him, and obtained from him a written confession, the employer, having been called to the store where the accusation was repeated in the presence of the thief, together with an exhibition of the stolen goods and the written confession, had, as a matter of law, probable cause to institute a criminal prosecution, although the watchman denied the theft. Hence, a subsequent action for malicious prosecution should be dismissed.
    A person who finds another in the act of stealing goods under twenty-five dollars in value may arrest him or cause his arrest without a warrant, and there is no false imprisonment if such person be deemed acting as a principal.
    Appeal by the defendant, H. Batterman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of January, 1909, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 16th day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    The complaint contains two causes of action, one for malicious prosecution and the other for false imprisonment.
    
      Edward M. Grout [Dean Potter and Frank R. Greene with him on the brief], for the appellant.
    
      George V. S. Williams [John E. Walker with him on the brief], for the respondent.
   Gaynor, J.:

The motion at the close to dismiss the cause of action for malicious prosecution should have been granted. The plaintiff and another were the day watchmen on Sundays in the drygoods establishment of the defendant, a corporation. The superintendent of the establishment was called to the store by the said other watchman by telephone of a Sunday evening. He was then told by the said watchman that he had seen the plaintiff upstairs trying something on ; that he also looked at his coat in the closet and found two pairs of gloves of the defendant in the pocket, and took them; that he went downstairs and waited until the plaintiff came down; that he accused him of having something on under his shirt which he had stolen; that he compelled him to strip and take off a smoking jacket of the defendant which he had on under his shirt; that he also accused him of stealing the gloves, and showed them to him and told him he had taken them from his coat pocket; that the plaintiff begged him not to expose him, and offered to pay him money if he would remain silent about the matter; that he (the said companion watchman) wrote on a paper the words and figures “2 pair gloves 1 jaket stilen 11/19” (“stilen” for stolen, he being a German, and “11/19” for the month and day) and the plaintiff signed the same. He exhibited the gloves, the jacket and the said paper to the superintendent, who sent for the police. They went to the plaintiff’s house and brought him to the store. On his arrival the accusation was repeated by his said companion to the superintendent in his presence. He denied it. There is evidence that he hesitated before denying, but that is disputed. He testified on the trial that he did not sign the said alleged confession, but his signatures to the complaint herein, to the bail bond before, the magistrate, and made twice during the trial herein at the request of counsel, show positively that he did. If the jury found otherwise, the verdict would have to be set aside, and from the size of the verdict they appear to have done so, for if they had found that he perjured himself on that head it cannot be believed that they would have given him more than a small verdict, viz., for the cause of action for false imprisonment.

As matter of law the superintendent had probable cause on the facts as they were given to him for causing the plaintiff to be prosecuted. The denial of the plaintiff did not suffice to destroy the case of probable cause which was before him (Francis v. Tilyou, 26 App. Div. 340; Rawson v. Leggett, 184 N. Y. 504).

As to the cause for false imprisonment, his companion watchman had the right to arrest the plaintiff without a warrant, if he caught him in the act, as he says he did, and therefore had the right to call on the police or any one else to aid him; and if that was really what happened, and the plaintiff was guilty, there was not even a technical false arrest and imprisonment. As the goods in question were worth less than $25, the right to arrest without a warrant depended on whether the offense was committed in the presence of the principal in the making of the arrest (Code Grim. Proc. § 177), and if the plaintiff’s companion watchman was such principal, the arrest was lawful if the offense was committed in his presence. On the new trial this phase can receive due attention.

The judgment should be reversed and a new trial ordered.

Hirsohberg, P. J., Jerks and Rich, JJ., concurred ; Burr, J., concurred in result.

Judgment and order reversed and new trial granted, costs to abide the event.  