
    Walter T. Craven, Plaintiff, v. Lyman G. Bloomingdale, Defendant.
    (Supreme Court, New York Trial Term,
    March, 1900.)
    1. False imprisonment—Legal malice as a basis for punitive damages.
    Punitive damages may tie given, in an action for false imprisonment, if the arrest was wanton or oppressive'or in open disregard of the plaintiff’s right to personal liberty, as it may then be said that legal malice has been shown, and such malice is a sufficient basis for punitive damages.
    :2. Same — Instructions to the jury as to malice.
    Where the jury has been instructed that they may give punitive damages, the court, unless so requested, is not bound to inform the jury of the nature of the malice which will justify such damages.
    -8. Same — Unliquidated damages.
    Where the damages are unliquidated and there is no fixed rule by which their measure can be ascertained, the amount is in the discretion of the jury, and their determination of it will not be disturbed unless there has been a plain abuse of discretion.
    Motion for new trial in an action for false imprisonment on the ¡ground that the court erred in charging the jury that they could .give punitive damages, and also on the ground of excessive damages.
    Otto Horwitz, for motion.
    J. W. Brainsby, opposed.
   Gildersleeve, J.

The action is for false imprisonment. The -motion for a new trial herein is urged upon two grounds: first, it is claimed that the court erred in instructing the jury that they -might award punitive or vindictive damages, and, second, the defendant claims that the damages awarded axe éxcessive. I think the case of Muckle v. Rochester R. Co., 79 Hun, 33, and Kblzem v. Broadway & Seventh Ave. R. Co., 1 Misc. Rep. 148, and other cases .that might be cited establish the rule,' in actions for false imprisonment, that punitive damages may be recovered “ if the arrest was wanton or oppressive or in open disregard of plaintiff’s right to per¡sonal liberty.” It may then be said that malice has been shown. Not malice in its ordinary sense, but legal malice, which is sufficient to support the claim for punitive damage. While in this case the court'instructed the jury that they might award punitive damage, the jury were not told the kind of malice upon which, if awarded, this character of damage must rest. Had the jury been told that if, from all the facts and circumstances, they reached the conclusion that the arrest by defendant’s servant was wanton, reckless and in disregard of plaintiff’s right to personal liberty, they might award some reasonable sum by way of exemplary damages, the charge would, I think, be free from error on the question of damages. The court did not refuse such instruction. It was not asked to so advise the jury. Except upon request of counsel, the court is not bound to lay down principles of law for the jury’s guidance. The court, in the case at bar, refused no request on this branch of the case, except the request of the defendant, that the jury should not give punitive damages. Since, therefore, under the evidence, I am of opinion that the jury had the power to award punitive damages, I think no error was committed in refusing to charge as requested. So far as the second point is concerned, I am not disposed to disturb the verdict on the ground of excessive damages. Where the damages are unliquidated and there is no fixed rule by which the measure of damages can be ascertained, the amount is referred to the discretion of the jury, and the court will not usually interfere with their decision, unless there has been a plain abuse of discretion. Pastor v. Regan, 9 Misc. Rep. 547; 14 Ency. of PL & Prac. 756. I do not think that there has been a plain abuse of discretion in the case at bar. Motion denied; no costs.

. Motion denied; no costs.  