
    Mandel Gold, Appellant, v. Wallace Armer, Respondent.
    Third Department,
    September 14, 1910.
    False imprisonment—arrest without warrant for misdemeanor — probable cause — erroneous charge.
    There is no distinction between the right of a peace officer and a private individual to arrest another for a misdemeanor without a warrant.
    In an action for falsely arresting the plaintiff without a warrant on the charge that he had committed a misdemeanor, the defendant, seeking to justify the arrest, must show not only that a misdemeanor had been committed but that the plaintiff committed it. Hence, it is error to charge that the plaintiff must show that the defendant had no probable cause, since that is not an element in' the action when an arrest for a misdemeanor is made without a warrant.,
    
      It seems, that where an arrest is made without a warrant on a charge of felony a peace officer is only justified where a felony has been in fact committed and he has reasonable cause to believe that the person arrested committed it; and a private person is authorized to arrest another for a felony only when the person arrested actually committed it.
    
      Appeal by the plaintiff, Mandel Gold, from a judgment of the Supreme Court in favor of the defendant, entered in the clerk’s office of the county of Schenectady on the 13th day of March, 1908, upon the verdict of a jury rendered after a trial at the Schenectady Trial Term, and also from an order entei'ed in said clerk’s office on the 10th day of March, 1908, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was for false imprisonment. . It was practically undisputed that the plaintiff, an electrical contractor, entered the defendant’s hardware store to make a purchase of a bit; tiiat he made the purchase and gave the defendant a dollar bill; that about that time one Barney Abelove entered the store and entered into a conversation with the plaintiff. The defendant gave the plaintiff a purchase receipt and went to the rear of the store for the change. When he returned he discovered that a drill handle which he had left in a box on the counter, in front of the plaintiff, was gone. The defendant testified : “ I said to them, ‘ Gentlemen, there was a handle in that box and it is gone. You produce that handle or I shall lock the door and call a police officer.’ ' I locked that door and after telephoned for a police officer.”
    It appeared that in about ten minutes the police officer came in answer to the defendant’s call, and by his direction all of the parties went to the police station with the’officer. The defendant and Abelove were searched, and as nothing was found upon their "persons, they were discharged. The court instructed the jury that “ The plaintiff must go further than show that there was an imprisonment ; he must establish affirmatively by a fair preponderance of the proof that the imprisonment, if there was one, was without reasonable or probable cause. The burden is upon hiin to show that defendant had no reasonable or probable cause to think him a thief and arrest him. * * * Upon this question of probable cause or the want of it the burden'is on the plaintiff, and if you think that the case' is so close that you can’t tell which one of these, two men is right, and whether or not there was probable cause, then- yon would have to find for defendant. If you think the plaintiff has borne the burden of proof in the case, and that defendant had no cause to act as he did upon the facts, then you will find for the plaintiff.”
    Counsel for the defendant then asked the court to charge “ That if a private person imprisons another person unlawfully, he is liable, although he might have had probable cause; that in case of false imprisonment, as alleged in this case, probable cause is not an element.” These requests were refused and the defendant excepted.
    
      Benjamin Terk, for the appellant.
    
      John D. Miller, for the respondent.
   Sewell, J.:

There is a difference in the power of a private person and a peace officer, without a warrant, to make -an arrest in case of a felony. A peace officer has authority to make an arrest without a warrant “ when a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.” (Code' Crim. Proc. § 177.) A private person is authorized to arrest another for a felony when the person arrested has committed it. (Code Crim. Proc. § 183.)

But there is no distinction between a peace officer, without a warrant, and a private individual in respect to the right to arrest for a misdemeanor. To justify either of them in arresting or aiding in the arrest of a person, without warrant, for a misdemeanor, it must appear that the crime has actually been committed or attempted in his presence by the person arrested. When sued for arrest they must not only show that a misdemeanor has been committed but they must prove that the person arrested committed it. It follows that the question of reasonable cause was not an element bearing upon the plaintiff’s right to recover and that the case should have been sent to the jury upon the question whether the misdemeanor was committed or attempted by the plaintiff.

The judgment and order must, therefore, be reversed and a new trial ordered, costs to appellant to abide event.

All concurred.

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