
    SWART v. RICKARD.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    False Imprisonment—Probable Cause.
    An affidavit setting forth that affiant’s store was burglarized and certain goods taken therefrom, and that affiant believes, and has reason to believe, that the store was burglarized by S.,,V., and another, from the fact that said persons were about that time, after 1 A. M., prowling round and near the premises, does not show, or tend to show, the guilt of S. and V., so as to give the magistrate jurisdiction to issue a warrant; and S., being arrested, has his action against the affiant for false imprisonment. Herrick, J., dissenting.
    Appeal from special term, Montgomery county.
    Action by James H. Swart against Charles Rickard for false imprisonment and malicious prosecution. To a ruling of the trial judge withdrawing from the jury the issues as to false imprisonment, plaintiff excepted. Judgment for defendant, and new trial denied. Plaintiff appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    L. F. Fish, (R. B. Fish, of counsel,) for appellant.
    Westbrook & Borst, (Z. S. Westbrook, of counsel,) for respondent.
   PUTNAM, J.

The complaint contains a count for false imprisonment, and also one for malicious prosecution. On the trial the judge submitted to the jury the issue raised by the pleadings as to malicious prosecution, but held that the plaintiff was not entitled to recover for the alleged false imprisonment, and withdrew the issues raised by the pleadings in that regard from the jury. The plaintiff excepted to this ruling of the trial judge, and that exception raises the only question in the case.

On the complaint of the defendant, plaintiff was arrested and imprisoned on a warrant issued by one Rulison, a justice of the peace of Fultonville, Montgomery county. The following is the affidavit on which the warrant was issued:

“Montgomery County—ss.: Charles Rickard, of said county, being duly sworn, says that on the night of October 24, 1891, at the village of Fulton-ville, town of Glen, said county, his store was burglarized by breaking the large glass in the front door, and entered, and goods taken therefrom, to wit, two or more revolvers, and a quantity of cigars, and deponent believes, and has reason to believe, that store was broken into and burglarized by James H. Swart and Wallace Van Evera and another, from the fact that said parties were about that time, i. e. after one o’clock that night, prowling around and near the premises. Wherefore deponent prays that process issue to arrest the said offenders. Charles Rickard.
“Sworn before me this 21st day of Nov., 1891. H. H. Rulison, J. P.”

It is urged by the appellant that this affidavit was insufficient to give the justice jurisdiction of the person of the plaintiff, and that hence defendant, who caused his arrest under the warrant, was liable in an action for false imprisonment. We think the affidavit was insufficient to justify the issuing of the warrant. It sufficiently shows the commission of a crime, but fails to allege ■any fact showing the guilt of the plaintiff and Van Evera. The ■allegation that defendant believes, and had reason to believe, that his store was burglarized by said parties, does not establish, or tend to- establish, the charge. The reason stated by defendant for his belief, that said parties were about the time prowling around and near said premises, is not a statement of any fact indicating their ■guilt. At the most, the affidavit shows on the part of defendant ■a suspicion of, and perhaps grounds for such suspicion against, the plaintiff. The case is not unlike that of Blodget v. Race, 18 Hun, 132. In that case Justice Bockes says, (page 133:)

“But, before a warrant can lawfully issue for the arrest of the offender,'the magistrate must have some evidence of his guilt. Facts and circumstances •stated on information and belief only, without giving any sufficient grounds ■on which to base- the belief, are insufficient to confer jurisdiction as to the person. The magistrate must have evidence of probable cause, both as to the commission of the offense and the guilt of the offender, before he can ¡have jurisdiction to cause the arrest.”

To the same effect, see People v. Pratt, 22 Hun, 300--303; Loomis v. Render, 41 Hun, 268; Devoe v. Davis, 12 N. Y. Wkly. Dig. 544; Comfort v. Fulton, 39 Barb. 56; Miller v. Brinkerhoff, 4 Denio, 118; Vredenburgh v. Hendricks, 17 Barb. 179. In each of the above cases, as in the case under consideration, no facts are stated in the affidavit on which a warrant was issued, showing the guilt of the party accused, and hence the magistrate did not acquire jurisdiction of his person. It must be remembered that when there is proof, though slight and insufficient, legally tending to establish all the essential facts, and the magistrate erroneously issues a warrant, such process can only be avoided by a direct proceeding to set it aside. Miller v. Brinkerhoff, supra. The cases cited and relied upon by defendant were those where there was some evidence given before the committing magistrate tending to support the charges made, and the magistrate erred in issuing a warrant on the fact or on the law. They were not cases like this, where in fact there was no evidence given to sustain the warrant. See Hewitt v. Newburger, 66 Hun, 230, 20 N. Y. Supp. 913; Pratt v. Bogardus, 49 Barb. 89; Lewis v. Rose, 6 Lans. 206; and other cases referred to by respondent. The case of Von Latham v. Libby, 38 Barb. 339, was where the defendants appeared before a magistrate and made a complaint, stating the facts truly, which the magistrate erroneously held to constitute a crime, and issued a warrant. Facts were stated in the case for the consideration of the magistrate, and he erred in holding that they constituted a crime. See Miller v. Adams, 52 N. Y. 413. We conclude that the plaintiff was entitled to go to the jury on the issues raised in the pleadings as to the false imprisonment, and hence that the exception of plaintiff was well taken. It follows that the judgment should be reversed, and a new trial granted; costs-to abide the event.

MAYHAM, P. J., concurs. HERRICK, J., dissenting.  