
    JOHN CUNNINGHAM, Appellant v. EAST RIVER ELECTRIC LIGHT COMPANY, Respondent.
    
      Practice—Malicious prosecution and false imprisonment, may be combined in one action, etc.
    
    At the commencement of the trial plaintiff’s counsel announced that the action was one for false imprisonment only, and not for malicious prosecution; whereupon the trial judge granted defendant’s motion to dismiss the complaint. Plaintiff then asked leave to amend, which was denied, and then asked leave to withdraw a juror, which request was also denied. To neither of these rulings was any exception taken by plaintiff’s counsel, and, therefore, Held, that they present no question for consideration on appeal.
    After this, in the course of the proceedings, the defendant’s counsel asked for an extra allowance of costs, which was granted, and after this, and not before, plaintiff’s counsel took an exception to the dismissal of the complaint. Held, that the plaintiff was at liberty to combine in the same complaint an action for false imprisonment and one for malicious prosecution, but plaintiff’s counsel having particularly stated that the action was for false imprisonment, solely, the case on appeal must be considered from that standpoint alone. It is well settled that the material allegations in a complaint for false imprisonment, as distinguished from one for malicious prosecution, are the allegations that the defendant had imprisoned plaintiff and that the process was unlawful, that is, without authority of law. The action cannot be maintained where the process was regular and the arrest under it lawful.
    There being no claim made in the complaint that the arrest was unlawful ,or the process irregular, Held, that there was no error in the ruling of the trial judge that the complaint does not state facts sufficient to constitute a cause of action for false imprisonment.
    Before McAdam and Gildersleeve, JJ.
    
      Decided January 11, 1892.
    Appeal from judgment dismissing the complaint, on the ground that said complaint does not state facts sufficient to constitute a cause of action.
    
      
      William J. Lacey, attorney, and William H. Megan of counsel, for appellant.
    
      William H. Kelly, attorney, and Michael J. Kelly of counsel, for respondent.
   By the Court.—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 ivas 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 offence 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., 214; hut 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. R., 214; Marks v. Townsend, 97 N. Y., 590.

The action cannot be maintained where the process was regular, and the arrest under it lawful. See Nebenzahl v. Townsend, 61 How., 353; Landt v. Hilts, 19 Barb., 283; Sleight v. Ogle, 4 E. D. Smith, 445; Marks v. Townsend, 97 N. Y., 590; Reynolds v. Corp, 3 Cai., 267; Brown v. Crowe, 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 hy 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 Ib., 253; Ackroyd v. Ackroyd, 3 Daly, 38; Castro v. Uriarte, 2 Civ. Pro. R., 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.

McAdam, J., concurred.  