
    SUPREME COURT—APP. DIV.—FOURTH DEPT.,
    May 3, 1916.
    LEVI S. CHAPMAN v. GRANT SELOVER.
    (172 App. Div. 858.)
    (I.) Motor vehicles—Village Law construed—Adoption of local ORDINANCE PUTS EQUIVALENT PROVISION OF HIGHWAY LAW IN ABEYANCE —Assault and false imprisonment by arrest without warrant— Erroneous charge.
    Where the trustees of a village under the authority of section 288 of the Highway Law (as added by Laws of 1910, chap. 374), pass an ordinance regulating the speed of motor vehicles in the village and fix the punishment for a violation, section 290, subdivision 2, of the Highway Law (as added by Laws of 1910, chap. 374), making a violation of section 287 of said statute a misdemeanor, is no longer applicable in that village.
    (2.) Same.
    There is no statute authorizing the trustees of a village to make a violation of a local ordinance respecting the speed of motor vehicles a crime. Only a violation of the provisions of the Highway Law in this respect is a misdemeanor.
    (8.) Same—Power of village to make local speed ordinance—Punishment FOR VIOLATION OF LOCAL ORDINANCE-WHEN DEFENDANT CANNOT BE ARRESTED—ARREST WITHOUT WARRANT WHEN ASSAULT AND FALSE IMPRISONMENT.
    The trustees of a village in the exercise of their statutory power to fix the punishment for the violation of a local ordinance respecting the speed of motor vehicles are limited to the imposition of a fine tc ' ecllj.’ted by civil action, except that they may also ordain that such violation constitutes disorderly conduct which, under sections 93 and 338 of the Village Law, subjects an offender to arrest without process where the violation is committed in the presence of a police officer.
    
      Hence, where a local village ordinance respecting the speed of motor vehicles merely imposed a fine and did not make a violation disorderly conduct, a police officer who arrested a person for the violation of the ordinance and brought him before a magistrate was guilty of assault and false imprisonment and is liable in a civil action to' recover damages therefor.
    (4.) Same.
    In an action to recover such damages it is error to charge that the local ordinance was a protection to the defendant if he used no more force than was necessary.
    (5.) Arrest—False arrest for exceeding speed limit not justified by OTHER CRIME.
    Such arrest for violation of a speed ordinance cannot be justified on the ground that the person arrested was guilty of some other crime.
    
      Jleld, that the complaint stated a cause of action for false imprisonment as well as one for assault.
    (6). Same—Amendment at trial.
    In such action the court has power to allow an amendment of the complaint to set out the false imprisonment more clearly.
    Appeal by the plaintiff, Levi S. Chapman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 17th day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office of the same day denying plaintiff’s motion for a new trial made upon the minutes.
    
      Harry E. Newell [Newell, Chapman & Newell, attorneys], for the appellant.
    
      G. W. O’Brien [Cleveland J. Kenyon, atttorney], for the respondent.
   Foote, J.:

Defendant, a police officer of the village of Tully, Onondaga county, arrested plaintiff on July 19,1914, in said village without a warrant on a charge that plaintiff had, in his presence, violated an ordinance of the said village in that he had operated an automobile on the public streets of said village at a greater rate of speed than fifteen miles per hour for a distance exceeding one-eighth of a mile. Defendant took plaintiff immediately before the police magistrate of said village, where plaintiff was arraigned upon the charge, pleaded not guilty and demanded a jury trial. The case was adjourned and trial had before a jury on July 23, 1914, when plaintiff was convicted and a fine of fifty dollars imposed by the justice. Meantime, before the trial, this action was brought to recover damages as for an assault and an unlawful arrest. Plaintiff subsequently appealed from the judgment of conviction to the County Court of Onondaga county, where the conviction was reversed and an opinion written. (See People v. Chapman, 88 Misc. Rep. 469.) On the trial of the present case, the jury rendered a verdict in favor of defendant from which plaintiff appeals.

The principal questions presented upon the appeal are as to the validity of the ordinance, the right of defendant to arrest plaintiff for a violation thereof committed in his presence, and as to the correctness of the instructions given to the jury by the learned trial justice to the effect that, although the ordinance was invalid, it afforded some protection to the officer in making the arrest, and that if plaintiff was running his car at a greater rate of speed than fifteen miles per hour, then defendant was justified in doing what he did, that is, in arresting plaintiff and taking him before the magistrate.

The village of Tully is incorporated under the Village Law (Consol. Laws, chap. 64; Laws of 1909, chap. 64). On May 21, 1914, its board of trustees adopted a motor vehicle ordinance as follows:

First. Resolved, that no person shall operate a motor vehicle on the public streets of the Village of Tully, N. Y., at a rate of speed exceeding one mile in four minutes and. that anv person operating a motor vehicle at a rate of speed exceeding one mile in four minutes on the public streets of said Village of Tully shall be guilty of a misdemeanor punishable by a fine not exceeding fifty dollars (50).”

The authority of the board to adopt this ordinance is found only in section 288 of the Highway Law (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], as added by Laws of 1910, chap. 374), which limits in certain particulars the power of cities and villages in respect to the regulation of motor vehicles, and further provides as follows: “ Provided, further, that the local authorities of other cities [than cities of the first class] and incorporated villages may limit by ordinance, rule or regulation the speed of motor vehicles on the public highways, such speed limitation not to be in any case less than one mile in four minutes, and the maintenance of a greater rate of speed for one-eighth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent; * * * and also on further condition that such ordinance, rule or regulation shall fix the punishment for violation thereof, which punishment shall, during the existence of the ordinance, rule or regulation, supersede those specified in subdivision two of section two hundred and ninety of this chapter but, except in cities of the first class, shall not exceed the same.”

Subdivision 2 of section 290 (as added by Laws of 1910, chap. 374) makes the violation of section 287 a misdemeanor punishable by a fine not exceeding $100, and section 287 (as added by Laws of 1910, chap. 374) is as follows: “Every person operating a motor vehicle on the public highway of this State shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person; provided, that a rate of speed in excess of thirty miles an hour for a distance of one-fourth of a mile shall be presumptive evidence of driving at a rate of speed which is not careful and prudent.” It will be seen that when a village adopts an ordinance fixing a penalty or punishment, then the punishment prescribed by subdivision 2 of section 290 is no longer applicable in that village. We find no other section of the Highway Law which makes it a crime to violate a village ordinance regulating motor vehicles.

It appears, therefore, that the board of trustees had the power under section 288 of the Highway Law to adopt the ordinance entirely without reference to their powers derived from the Village Law or any limitations therein upon their powers, but there seems to be no statutory authority for the board to declare a violation of its ordinance to be a misdemeanor. Section 288 of the Highway Law does require the board in adopting an ordinance to “ fix the punishment for violation thereof,” but that is not a grant of power to declare the violation a crime, for the Legislature has nowhere so said, so far as we are advised, and we do not think the power is implied in the power to fix the punishment. Subdivision 9 of section 290 of the Highway Law (added by Laws of 1910, chap. 374, as amd. by Laws of 1913, chap. 1) provides: “ Any person violating anjr of the provisions of any section of this article 0 0 0 for which violation no punishment has been specified, shall be guilty of a misdemeanor punishable by a fine of not exceeding twenty-five dollars.” This applies only to violations of the sections of the Highway Law referred to, but does not make it a misdemeanor to violate village ordinances authorized by the Highway Law.

The limit of the power would seem to be to impose a fine to be collected by civil action, except the power to which we will now refer. By section 93 of the Village Law it is provided that the board of trustees “ may enforce obedience to its ordinances by prescribing therein penalties for each violation thereof, not exceeding one hundred dollars for any offense. In addition to the penalty the board may also ordain that a violation thereof shall constitute disorderly conduct, and that the person violating the same shall he a disorderly person; and such violation shall constitute disorderly conduct, and such person shall be a disorderly person.” By section 338 of the Village Law a “ disorderly person ” under that law is subject to arrest with or without process, and a police officer is authorized to arrest a disorderly person without process for a violation of a village ordinance, committed in his presence. When such arrest is made it is the duty of the officer to take the person arrested immediately before the magistrate, who must, unless the violation is an indictable crime, proceed forthwith, unless an adjournment is had, to hear the complaint, and on conviction the magistrate shall impose the penalty prescribed by the ordinance violated, and may commit the defendant to jail if the fine is not paid.

In all other cases the procedure for collecting the penalty under ordinances which do not declare the violation to constitute disorderly conduct is prescribed by section 339 of the Village Law in the form of an action to recover the penalty. In this action an order of arrest may issue, and if judgment is recovered and no property of the defendant’s is found he may be committed to the county jail for a term not exceeding twenty days.

Our conclusion is that the village board were without the power to declare the violation of the ordinance in question to be a misdemeanor, and that that part of the ordinance is void. We think, however, the remainder of the ordinance is valid, including the part imposing the penalty for its violation. (Duryee v. Mayor, etc., 96 N. Y. 477.)

It appeared upon this trial that the formalities of publication, posting, etc., required to put the ordinance into force, pointed out in the opinion in People v. Chapman (88 Misc. Rep. 469), were, in fact, complied with.

As the ordinance did not declare its violation to constitute disorderly conduct, and as no statute which has been called to our attention gave the defendant as a public officer authority to arrest plaintiff for violating the ordinance in his presence, and as it is conceded that the arrest was not made for any other crime than violation of the village ordinance, we think the arrest cannot be justified, that it constituted an assault upon plaintiff, and that it was unlawful. (Schneider v. McLean, 3 Keyes, 568; Hennessy v. Connolly, 13 Hun, 173; Schneider v. Montross, 158 Mich. 263.) Under these circumstances it seems clear that the learned trial judge was in error in instructing the jury in effect that the ordinance as a protection to defendant in making the arrest, if he used no more force than was necessary. Even if plaintiff had violated some other law and was actually guilty of a crime, the arrest which defendant made for violating the ordinance could not be justified by showing plaintiff’s guilt of such other crime. (Snead v. Bonnoil, 166 N. Y. 325.) We are also of opinion that the trial court was in error in ruling that the complaint stated a cause of action for assault only, and not for false imprisonment. (See Craven v. Bloomingdale, 54 App. Div. 266.) The authority of that case is not disturbed by its reversal in 171 New York, 439, upon another ground. We are also of opinion that it was error to hold that the trial court was without power to allow an amendment of the complaint to allege false imprisonment more clearly as a ground of recovery.

The judgment must be reversed and a new trial ordered, with costs to plaintiff to abide the event.

All concurred, Merrell, J., in result only.

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