
    SAMIELOFF v. NEW YORK & Q. O. RY. CO.
    (Supreme Court, Appellate Division, First Department.
    December 20, 1907.)
    1. Malicious Prosecution—Actions—Instructions. •
    An Instruction, in an action against a street railway company for false arrest and malicious prosecution, that because of what plaintiff's counsel urged on the question of exemplary damages the court charged that the law only makes a master responsible for the malicious act of a servant when the master actually authorized it, had knowledge of it, or ratified it, and that all of these elements must be proven, left to the jury the question of exemplary damages.
    2. Master and Servant—Injuries to Third Persons—Exemplary Damages.
    Exemplary damages cannot be recovered against a master for the malicious act of a servant, unless the master authorized the act, had knowledge of it, or ratified it.
    [Ed. Note.-—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1273.]
    8. Malicious Prosecution—Instructions—Damages.
    Where, in an action against a street railway company for false arrest and malicious prosecution by one against whom complaint was made by a conductor, there was no evidence to sustain a finding of malice on the part of the company, it was error to leave to the jury the question of exemplary damages.
    4. Appeal—Review—Questions of Fact—Weight of Evidence.
    A verdict against the weight of evidence will not be permitted to stand on appeal.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3938-3942.]
    Appeal from Trial Term.
    Action by Joseph Samieloff against the New York & Queens County Railway Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed, and new trial ordered.
    Argued before PATTERSON, P. J., and McLAUGHLIN, IN-GRAHAM, CLARKE, and HOUGHTON, JJ.
    Van Vechten Veeder (I. R. Oeland, of counsel), for appellant.
    Abraham H. Sarasohn, for respondent
   CLARKE, J.

This is an action to recover damages for false arrest and malicious prosecution. The plaintiff testified that he was a passenger on a car of the defendant, and was making a trip to the cemetery to visit his wife’s grave; that, as the car upon which he was riding approached the cemetery, he saw a disturbance or fight around a preceding car between the conductor and the motorman of that car and a number of passengers; that he took no part in the fracas, but protested to the motorman upon his car, and was told to “shut- up,” with an opprobrious epithet, “or he would get his face punched in”; that on the way back to the terminus at the Thirty-Fourth Street ferry he "again protested and received a similar reply; that he then told the motorman, “You so fresh to me, when the car stops in Thirty-Fourth street, near to the office to the ferry, then I be a witness. I go into the office, and I tell everything I saw what you do with these people”; that, when he got off the car at the ferry, he was arrested upon the complaint of the conductor of the car around which the fight had raged, whose head was cut and bleeding; that he was locked up overnight, held for the grand jury, was indicted, tried by a petit jury, and acquitted. The charge in that proceeding was that he had assaulted the conductor of the prior car with a stone. He produced no witnesses in regard to the occurrence at the cemetery. The conductor upon whose complaint the plaintiff was arrested is dead, but the company produced two employés and four apparently disinterested witnesses who were passengers, the substance of whose testimony was that the plaintiff took part in the fight, threw a stone at the conductor, and was about to throw another when he was stopped by the conductor of his own car, and that he had a wrestle and struggle with that conductor and tore his coat. The jury found a verdict for the plaintiff, and assessed the damages at $2,000.

In charging the jury the learned court said:

“Because of what plaintiff’s counsel urged on the question of exemplary or punitive damages, I charge you that unless the evidence satisfies you and persuades you, and not upon speculation or conjecture, that the defendant company had knowledge of any malicious act of the conductor, in the event that you should find that the conductor personally acted maliciously and with knowledge of the defendant company, even then there can be no recovery by way of exemplary damages or punitive damages against the defendant company, because of the individual malice of the conductor, even though you find that the act was within the conductor’s duty. The law only charges and makes a master responsible for the individual malicious act of a servant when the master actually authorized it, had knowledge of it, or affirmatively ratified it. All of these elements must be proven to your satisfaction by evidence, and not by speculation or conjecture, namely, that the defendant company authorized the individual malicious act, that the defendant company had knowledge of it, and, having knowledge of a malicious act of the conductor, that it expressly ratified it.”

Defendant excepted to the charge of the court, leaving to the jury-all the question of exemplary damages. The respondent admits that the question of exemplary damages should not have been left to the jury. He says in his brief:

“This exception is without merit, because as matter of fact the court did not leave to the jury any question of exemplary damages. The court simply stated an abstract question of law favorable to the defendant, and a general exception to the charge is without purpose.”

But from what the court said it is quite evident that plaintiff’s counsel had very earnestly presented the question of exemplary damages and claimed to recover therefor-in summing up the case to the jury; and it is quite evident from the exception and the court’s reply to the exception that it was leaving to the jury the question of exemplary damages. There is no evidence in the case, if the rules laid down by the trial court are correct, to sustain the finding of malice on the part of the company such as to charge them with exemplary damages.

In Craven v. Bloomingdale, 171 N. Y. 439, 64 N. E. 169, it was held that:

“A master cannot be held liable for punitive or vindictive damages by reason of wanton, oppressive, or malicious acts of the servant, unless there is proof to implicate him and make him particeps criminis of his servant’s acts; and in an action brought against a master for an illegal arrest caused by his sen-ant, it is reversible error for the trial court, after instructing the jury as to the law of compensatory damages, to instruct them that they had also the power, if they thought proper, to award punitive or vindictive damages in addition to the amount fixed by them for compensatory damages, without further instructing them that such damages should not be awarded unless there was proof showing that the acts of the servant were wanton, oppressive, or malicious, and that the master was implicated with the servant therein, or had either expressly or impliedly authorized or ratified them.”

The learned court correctly charged the law, but, as there was no-evidence upon which the jury could have charged the alleged malicious acts of the servant upon the master, when the court’s attention was called by the exception to the fact that he had left to the jury the question of exemplary damages, he should have instructed them that compensatory damages were all that they could find. The considerable space given in the charge to the discussion of this question which was not properly before the jury had a tendency to confuse the issue, and was harmful to the defendant.

The verdict is against the weight of the evidence, and therefore the judgment and order should be reversed, and a new trial ordered, with costs to the app'ellant to abide the event. All concur.

INGRAHAM, J.

(concurring). I concur with Mr. Justice CLARICE. I also think that upon the evidence plaintiff failed to show a want of probable cause for .the charge made against him. The question of probable cause is a question of law for the court and not for the jury, and upon the facts that appeared without substantial contradiction—assuming that the defendant was responsible for the plaintiff’s arrest—it had probable cause to charge the plaintiff with being concerned in the assault upon the conductor of the first car.

I do not think that the defendant was liable for the act of the conductor of the first car in charging the plaintiff with an assault. The alleged assault occurred in the public street after the conductor had left his car, and there was nothing to show that the conductor was at the time of the assault or when he made the charge acting in the course of his employment, or in the performance of any duty imposed upon him by the defendant. The mere fact that the counsel for the conductor before the magistrate was also counsel for the railroad company does not connect the railroad company with the prosecution so as to make it liable therefor.

On both these points I think the plaintiff failed to prove facts sufficient to sustain his action, and that the complaint should have been dismissed.

HOUGHTON, J., concurs.  