
    John Cunningham, App’lt, v. The East River Electric Light Co., Resp’t.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed January 11, 1892.)
    
    False imprisonment—Pleading.
    A complaint in an action for false imprisonment, which does not show" that the process under which the plaintiff was arrested was irregular and unlawful, does not state facts sufficient to constitute a cause of action,, even though malice in procuring the arrest is averred.
    Appeal from a judgment dismissing the complaint
    
      William J. Lacey, for app’lt; William H. Kelly, for resp’t.
   Gildersleeve, J.

This is an appeal from a judgment rendered at trial term dismissing the complaint in this action on the ground that said complaint does not state facts sufficient to constitute a cause of action.

The complaint sets forth the cause of action as follows: “ That on the 8th day of January, 1890, at the city of New York, said defendant, maliciously intending to injure the plaintiff, procured the plaintiff to be arrested and placed in the custody of a police officer, who compelled the plaintiff to go with him, against the will of said plaintiff, in such custody, through the streets of said city to the 18th precinct police station, and, after being confined there, said plaintiff was taken in such custody to the police court, and was then and there committed to the Tombs prison, and after being imprisoned and confined in such custody until the 10th day of January, 1890, said plaintiff was conveyed to the court of special sessions in said city, where the defendant being-unable to establish any offense against the plaintiff, said plaintiff was discharged and acquitted.”

At the commencement of the trial the plaintiff’s counsel announced that the action was one for false imprisonment, only, and not one for malicious prosecution; whereupon the trial judge granted defendant’s motion to dismiss the complaint Plaintiff then asked leave to amend, which was denied; plaintiff then asked leave to withdraw a juror and amend, which request was also denied. To neither of these rulings was any exception taken, so that they present no question for consideration here. After this, defendant asked for an allowance, which was granted; and then plaintiff took an exception to the dismissal of the complaint

The plaintiff was at liberty to combine both an action for false imprisonment and one for malicious prosecution in the same complaint, see Marks v. Townsend, 97 N. Y., 590; also Castro v. Uriarte, 2 Civ. Pro., 210; but as he particularly stated that his action was for false imprisonment, solely, we must consider the case from that standpoint alone. See Von Latham v. Libby, 38 Barb., 342.

It is well settled that the material allegations in a complaint in an action for false imprisonment, as distinguished from one for malicious prosecution, are that defendant had plaintiff imprisoned, and.that the process was unlawful, i. e., without authority of law. See Ackroyd v. Ackroyd, 3 Daly, 38; also, Castro v. Uriarte, 2 Civ. Pro., 214; Marks v. Townsend, 97 N. Y., 596.

The action cannot be maintained where the process was regular, and the arrest under it lawful. See Nebenzahl v. Townsend, 61 How. Pr., 353; Landt v. Hilts, 19 Barb., 283; Sleight v. Ogle, 4 E. D. Smith, 445; Marks v. Townsend, 97 N. Y., 596; Reynolds v. Corp, 3 Caines, 267; Brown v. Crowl, 5 Wend., 298.

There is no claim made in the complaint that the arrest was unlawful, or the process irregular-.

As far as the complaint shows, the imprisonment was lawfully effected. The allegation of malice does not help the plaintiff; for even if the defendant were moved by malice in causing the arrest, unless the process was irregular and unlawful, an action for false imprisonment, as distinguished from one for malicious prosecution, would not lie. See Sleight v. Ogle, 4 E. D. Smith, 445; also Von Latham v. Libby, 38 Barb., 339; Brown v. Chadsey, 39 id., 253; Ackroyd v. Ackroyd, 3 Daly, 38; Castro v. Uriarte, 2 Civ. Pro., 214.

We are of the opinion that the learned trial judge did not err in his ruling that the complaint does not state facts sufficient to constitute a cause of action for false imprisonment.

The judgment appealed from is affirmed, with costs.

Me Adam, J., concurs.  