
    Ashbel P. Grinnell, Respondent, v. Edward Weston, Appellant.
    
      False imprisonment—liability, where an a/rrest for a felony is made by a police officer at the request of a private citizen — how far the officer is the agent of the citizen requesting the arrest — when the question whether the a/rrest was justified, is one of fact for the jury■—aha/rge as to compensator’ll and as to punitive damages — proof of actual malice.
    
    If a private individual identifies a person as one who has been guilty of a crime and requires a police officer to arrest him without a warrant, the arrest is the joint act of the private individual and the peace officer, and if the arrest is unwarranted and illegal both the police officer and the private individual are joint tort feasors and both are liable for the wrong. The fact that the officer, acting under the information given to him by the individual, is the one that takes the physical possession of the person arrested does not relieve the private individual from responsibility. Both the individual and the officer unite in the act and are both responsible for the arrest if unlawful. While the officer may prove a justification by showing that a felony had been committed, and that he acted upon the statement made to him by the instigator and had reasonable cause to believe that the person arrested was guilty of the felony, the person instigating the arrest, and who is jointly responsible with the police officer for it, to justify himself, must show that a felony had been committed, and that the person arrested Was connected with it, or at least that he acted upon grounds which would justify a prudent person in believing that the person arrested was guilty.
    Merely furnishing information to a police officer, when called upon to state facts for his guidance, although such information is subsequently shown to be inaccurate, does not make "the person making the statement a joint actor with the police officer in making the arrest. It is only when the action of the police officer is instigated or procured by the private individual, and the police officer acts, not upon his own volition, but to carry out a request, so that the private individual in effect procures the officer to make the arrest, that the individual becomes a joint actor with the officer in making the arrest. /
    ' In an action to recover damages ■ for false imprisonment, induced by the statement of a person who had been swindled, to a police officer who made the arrest, that the plaintiff was the person who had swindled him, it is a question for the jury to determine under all the circumstances of the case whether the person making the statement was justified in supposing the plaintiff to have been the guilty person; if he was, he is not liable.
    It is, therefore, improper for the court to charge, as matter of law, that the plaintiff is entitled to recover compensatory damages.
    In such a case, exemplary damages may be awarded only upon proof of actual malice. ■ • '
    The evidence of such actual malice may consist of proof that the acts of the defendant were instigated, by a desire to injure the plaintiff, or that the defendant acted wantonly or without reasonable ground to suppose that the arrest was justified, or that the conduct of the defendant was such as to indicate that the wrong was committed from malicious or improper motives.
    The defendant is entitled to have the jury charged that the police officer who made the arrest was not the agent of the defendant after the arrest was made, " and that tlie defendant was not responsible for any act thereafter done by the police officer.
    Appeal by the defendant, Edward Weston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York-on the 27th day of January, 1904, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 22d day of December, '1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      James W. Osborne, for the appellant.
    
      Thomas P. Wickes, for the respondent.
   Ingraham, J.:

. The plaintiff,- a physician and surgeon, - engaged in the practice of his profession in the State of Vermont, on the 23d day of March, 1901, when in the Grand Central Depot in the city of New York about to take a train, was arrested by á police officer of the city of New York at the instigation of the defendant, taken to police headquarters and after a detention there taken before a police magistrate and. discharged. He brought this ■ action to recover damages for a false imprisonment based' ¡upon this arrest and detention.

Hpon the trial it was not disputed but that the defendant caused the arrest of the plaintiff, mistaking him for a person against whom he had made á criminal charge, and that the mistake was occasioned by the resemblance of the plaintiff to the person against whom the defendant had made the charge, There was. no question but that there was -a serious mistake; and that the plaintiff is of irreproachable character, standing high in his profession. On behalf of the defendant it was proved that he was the president of "the "Weston Electrical Instrument Company, having a; large manufacturing establishment at Newark, N. J.; that some time before this arrest he had been swindled by a man named Raymor; that when in. New York, stopping at the Waldorf Hotel, he saw the plaintiff ip that hotel, and, mistaking him for Raymorj lie at once took steps to locate him so as to make a criminal charge against him. That defendant employed private detectives who ascertained that plaintiff was stopping at the Manhattan Hotel, and was to leave New York on the morning of March 23, Í901. This information being communicated, to the defendant he sent for one of • the detective sergeants of the city of New York who came to the. defendant’s room at the hotel about half-past seven o’clock in the morning. With the detective sergeant and the private detectives the defendant went to the New York Central depot, pointed the plaintiff out "as -Raymor,. whereupon the plaintiff was arrested by -the detective sergeant and taken to police headquarters, and subsequently taken-before a magistrate when the mistake was discovered, the attornéy for the defendant stating to the magistrate that it was a case of mistaken identity and that there was no charge against the plaintiff. And the magistrate discharged the plaintiff from arrest. The defendant then wrote to the plaintiff apologizing for the mistake, explaining the circumstances under which it occurred and offering to reimburse the plaintiff for any expense that he had been put to in consequence of his arrest. The whole case shows that the defendant was mistaken in his identification of the plaintiff; that he supposed that the person whose arrest he had instigated was the man Raymor against whom the criminal charge was pending, and that after the mistake was discovered he did everything in his power to remedy it. I have no doubt but that the arrest and detention of the plaintiff were illegal. The plaintiff had committed no crime and there was no charge against him. He was followed by the defendant and private detectives to the railroad depot where he was about to take a train for his home. The defendant procured the attendance of a police officer at the depot, insisted that the officer should arrest the plaintiff, refusing to state the nature of the charge and refusing to listen to the plaintiff’s explanation and protestation of his innocence. "While a police officer, under section 177 of the Code of Criminal Procedure, may, without a warrant, arrest a person when a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it, a private person is only authorized to arrest another when a crime has been committed or attempted in his presence, or where the person arrested has committed a felony, although not in his presence. (Code Crim. Proc. § 183.) The plaintiff’s testimony as to his arrest is that after he went through the gate to take the train he was interrupted by a man, whom he identified as the detective sergeant, putting his hand on the plaintiff’s shoulder and telling the plaintiff that he was wanted; that the plaintiff protested and asserted that there was a mistake; that the defendant then appeared and said to the plaintiff, “You know me,” to which the plaintiff answered, “I have never seen you before in my life,” whereupon'the defendant said, “You know me well enough. You have got my money,” and, addressing the men in charge of the plaintiff, said, “ Take him along,” and the defendant then disappeared. The detective, sergeant testified that at the request of the defendant he went to the Forty-second street depot and remained on the steps facing Forty-second street; that he had been waiting there ten or fifteen minutes, when the defendant and the private detectives came there accompanied by the plaintiff and his wife; that the defendant then said, “ Officer, this is the man who swindled me. Take charge of him; ” that the plaintiff said, “There is somé mistake here,” whereupon the officer took the plaintiff to police headquarters.

The defendant, upon the trial and also upon this appeal, insists that the court should have dismissed the complaint upon the ground that a police officer made the arrest, and that upon the undisputed evidence a crime had been committed, and as. the statement of the defendant to the police officer that the plaintiff was the person who had committed the crime, authorized the police officer to make the arrest, that the arrest and detention were not illegal, and that, therefore, an action for false imprisonment cannot be sustained, and in support of this proposition he cites the case of Thompson v. Fisk (50 App. Div. 71), where the court said: “ In this case there was no question made but that a felony had in fact been committed. Nor was any suggestion made but that the policeman was a peace officer. If, then, the officer had reasonable cause for believing that the plaintiff committed the felony, an arrest by him without a warrant was lawful, and even if the defendants procured the officer to make the arrest, still, if the^ arrest and detention by the officer were'lawful then the defendants would not be liable therefor, as for an unlawful .v ’ . < arrest and imprisonment. So that the real question was whether the officer, at the time he- made the arrest, had reasonable cause for believing -the plaintiff had committed the felony.” The question here presented was not directly before the court upon that appeal,, as what was determined was the question whether the officer had reasonable ground for believing that 'the plaintiff was connected with the felony that had been committed. This was a question for the jury and not for the court. If that case determined that where an individual requires a police officer to arrest an innocent person and the police officer, acting upon the statement made, makes the arrest, that the person instigating the arrest is not liable, if the police officer believed him, I think it is contrary to all the decisions and the settled law of this State. A peace officer has authority to make an arrest without a warrant where a felony has been committed and when he has reasonable cause to suspect the person arrested of having committed it, and if the officer acted iñ good faith and was justified in making the arrest,- he is protected; but the fact that the police officer is justified does not absolve the individual at whose request the arrest has been made from liability if in fact no felony had been committed, or the person arrested was not connected with the commission of a felony, and this distinction arises from the difference in the power of a police officer and a private individual to make an arrest. If a private individual identifies a person as one who has been guilty of a crime and requires a police officer to arrest him without a warrant, the arrest is the joint act of the private individual and the peace officer, and if the arrest is unwarranted and illegal both the police officer and the private individual are joint tort feasors and both are liable for the wrong. The fact that the officer acting under the information given to him by the individual is the one that takes the physical possession' of the person arrested does not relieve the private individual from responsibility. Both the individual and the officer united in the act and are both responsible for the arrest if unlawful. While the officer may prove a justification by showing that a felony had been committed, and that he acted upon the statement made to him by the instigator and had reasonable cause to believe that the person arrested was guilty of the felohy, the person instigating the arrest and who was jointly responsible with the police officer for it, to justify himself must show that a felony had been committed, and that the person arrested was connected with it, or at least that he acted upon grounds which would justify a prudent person in believing that the person arrested was guilty. It would certainly be a strange result if a person at whose instigation another was arrested could escape responsibility for a false arrest and detention by showing that he had induced a police officer to believe a false statement of another’s connection with a crime, so that the police officer would be justified in believing such false' statement in making the arrest. That the police officer was justified does not justify the individual who induced the officer to make the arrest. Of course, to connect an individual with the arrest it must be shown that he was the instigator and caused the arrest to be made. Merely furnishing information to a police officer, when called upon to state facts for his guidance, although such information is subsequently shown to be inaccurate, does not make the person making the statement a joint actor with the police officer in making the arrest. It is only when the action of the police officer is instigated or procured by the private individual, and the police' officer acts, not upon his own volition, but to carry out a request, so that 'the private individual in effect procures the officer to make the arrest, that the individual becomes a joint actor with the officer in making the arrest, and this is the effect, I think, of all the authorities. In Burns v. Erben (40 N. Y. 463) Judge James says: “But the allegations of the complaint are for an illegal arrest and detention. Such acts constitute what is usually denominated an action of false imprisonment; an action in the nature of a trespass for a direct wrong or illegal act, in which the defendant' must have personally participated; * * . * or the act must have been by his direct or indirect procurement. * * * The gist of such an action is an unlawful detention, and motive will be inferred so far, at least, as to sustain the action, and evidence to disprove actual motive only bears upon the question of damages.”

In Farnam v. Feeley (56 N. Y. 451) Judge Andrews says: “If the defendant directed the officer to arrest the plaintiff and he took her into custody in consequence of such direction, the defendant is liable as in an action for false imprisonment, unless he gave evidence establishing a justification. To justify a private person in arresting or aiding in the arrest of another without warrant, on a criminal charge, it must appear that a felony had been committed, and that he acted circumspectly and upon grounds which would have justified a careful and prudent person in believing that the person arrested was guilty of the crime. The burden is upon him to show, when sued for the arrest, that the circumstances justified the suspicion ; and if tins is made to appear he is not liable, although the accused was in fact innocent.;” and in Carson v. Dessau (142 N. Y. 445) the chief judge says: “ The arrest of the plaintiff was without warrant, on a charge of crime, when in fact, according to-her testimony, no crime had been committed, and no reasonable ground for suspicion existed on the part of David Dessau, by whose immediate direction the arrest was made. He was guilty of false imprisonment whether, or not the officer was liable.” In Hewitt v. Newburger (141 N. Y. 538) the 'defendant applied to "a magistrate and obtained a warrant for the plaintiff’s arrest, which warrant was without jurisdiction and was, therefore, void. Under this warrant the plaintiff was arrested and detained until he was subsequently discharged by. the magistrate, whereupon the plaintiff brought an action to recover for a false imprisonment. The coin-plaint was dismissed, but the Court of Appeals in ordering a new trial held that the magistrate was wholly without jurisdiction and the warrant and all proceedings under it were absolutely void, and that the process being void, the defendant at whose instance it was issued was liable, the court saying: This process being void the defendant is liable; the evidence shows him to have been active and officious in procuring this arrest; he went to the office of the recorder and said he wanted a warrant for the arrest of plaintiff'; he stated the facts, swore to this information, procured the warrant, handed it to the chief of police, said he wanted it served ‘right away,’ offered to provide a rig ’ to go to plaintiff’s house, and sent his son later to inform the officer where he could and did find plaintiff in a certain store at Amsterdam. All these circumstances establish defendant’s liability, and it was for the jury to determine what damages, if any, the plaintiff had suffered in the premises.” In that case there would be no doubt but that the chief of police, acting under the warrant of the recorder, was protected. It was not illegal for him acting under this warrant to make the arrest and to detain the person arrested until discharged by the recorder; but notwithstanding the fact that he was protected, the defendant at whose instigation the warrant had been obtained and the arrest made was held liable in an action for false imprisonment. None of these cases — and no case with which I am acquainted, unless it be the case of Thompson v. Fisk (supra) — has held that because a police officer, acting upon information furnished to him by another, was justified in making an arrest, that the person at whose instigation and procurement the arrest was made was not liable.

A further question is presented as to whether the trial justice was authorized to direct the jury to find the defendant liable for the arrest and detention of the plaintiff, or whether upon the facts it was a question for the jury to say, if they found that a felony had been committed, whether the defendant was justified in requesting the officer to make the arrest; and I am inclined to think that under the facts of this case this was a question for the jury. In Farnam v. Feeley (supra) the court expressly held that when a private person is sued-for an unlawful arrest and detention, “ the burden is upon him to show, when sued for the arrest, that the circumstances justified the suspicion; and if this is made to appear he is not liable, although the accused was in fact innocent.” In this case the question for the jury would .be whether they believed that a felony had been committed, and if they so found, whether under all the circumstances the defendant was justified in the. conviction that he expressed, that the plaintiff was the person guilty of the felony, and that if he was, then he was justified in taking the measures that he did to insure the detention of the plaintiff. . I think, therefore, the learned trial justice should have first submitted that question to the jury, with directions that' if they found against the plaintiff upon this point, then they were to award the plaintiff compensatory damages, with the’ further direction that if they.found that the action of the defendant was wanton or malicious, they would be justified in awarding the plaintiff punitive damages.

The court, in submitting this question to the jury, held as a matter of law that the plaintiff was entitled to compensatory damages, “ that is, he is entitled to Such a sum as will compensate him for the bodily and mental suffering caused by his. arrest, for the shame and humiliation of the arrest and the injury to his feelings, and for his anxiety of mind. That he is entitled to.” And that if the jury believed that the defendant acted with a wanton disregard of plaintiff’s rights, they could give more than compensatory damages, and left it to the jury to say whether the defendant acted as a prudent man would have acted under the circumstances, of the case; that “ if you believe plaintiff’s statement of it, then was it the act of a prudent man to cause plaintiff’s arrest ? If a crime had in fact been committed by the plaintiff, then the defendant had a right to cause his arrest, but he acted at his peril when he arrested the plaintiff. Did he act as a prudent man would have acted under the circumstances when he caused the plaintiff to be arrested by the detectives and taken to the Police Headquarters and from there to Jefferson Market Court % That is for you to determine from the evidence in the case. * * * I have told you that the detectives, Smith, Kennedy, Knox, Heitmann and McConville were the defendant’s agents, and their knowledge was his knowledge, their acts were his acts. * * * Was it the act of a prudent man to arrest at the railroad station a person who had been at the Manhattan Hotel all the morning getting his breakfast? If defendant acted as a prudent'man would have acted under the circumstances you can do nothing but give compensatory damages to the plaintiff. If he did not act as a prudent man would have acted under the circumstances you may give more than compensatory damages. I charge you that if the defendant used reasonable care and caution in causing the arrest of the plaintiff, then there is no evidence of actual malice, and if there is no evidence of actual malice the only damages you can give are compensatory damages.” Counsel for the defendant then asked the court to charge that the jury “have a right, upon the question of actual malice upon the part of Edward Weston, to take into consideration the fact that a felony was actually committed by Edward S. Raymor, and that Edward Weston actually believed, on reasonable grounds, that the plaintiff and Raymor were one and the same person that “ if Edward Weston used reasonable care and caution in causing the arrest of the plaintiff, in the actual belief, with reasonable grounds on his part, that Raymor and the plaintiff were one and the same person, then there is no evidence whatever of actual malice in this case; * * * that if "there is no evidence of actual malice, then the most that the jury can give is compensatory damages ; ” that it is a question for the jury to determine whether there was a reasonable ground for suspicion against the plaintiff in this case, and if there was and the defendant was not actuated by- actual malice, the plaintiff is entitled to recover only com-, pensatory damages.” That the jury had a right to take into consideration, in measuring the damages in this case, the fact that a felony was actually committed by Raymor, and that * ■* * the defendant actually believed that such a felony had been committed by Raymor, and that (the defendant) actually believed that the plaintiff and Raymor were one and the same person.” That if the jury “ find that a felony was actually committed by Raymor, and if Edward Weston, the defendant, actually and with reasonable cause believed that the plaintiff and Raymor were one and the same person, the jury have a right to take into consideration these facts in measuring the damages.” Finally the defendant requested the court to charge that “if the defendant Weston had no malicious motives and acted with probable cause in procuring the arrest of the plaintiff, the jury can find only compensatory damages.” These requests were all refused, and to each refusal the defendant excepted.

We think it was error for the court to refuse these requests. From the size of the verdict it is quite clear that the. jury awarded a large sum as exemplary damages. The case discloses that Raymor, the man that the defendant had charged with having committed an offense which would justify his arrest, resembled the plaintiff, and there is no evidence to show that the defendant, in procuring the arrest of the plaintiff, had any motive except to secure the arrest of the man who had been guilty of a crime, and that the arrest of the plaintiff was caused by the resemblance that he bore to Raymor was also apparent. I am not prepared to say that it would have been error -with proper instructions to submit to the jury the question as to whether there was actual malice which Would justify an award of exemplary damages, but assuming that .that is só, the defendant was then entitled to have the jury specifically instructed that if the defendant acted upon a sincere belief that the plaintiff was the person who had committed the felony and in good faith acted upon that belief, it should be considered in fixing the amount of damages that they would award the plaintiff. That exemplary damages are only awarded in case of the proof of actual malice, and that in the absence of proof of actual malice the jury is confined to compensation, is elementary, and the defendant was entitled to have the jury expressly instructed that they must find not only that there was a false arrest and false imprisonment, but that the defendant in causing the arrest of the plaintiff acted from actual malice. The evidence to prove this actual malice may consist of proof that acts of the defendant were instigated by a desire to injure the plaintiff. Such malice may also .be proved by wanton conduct without a reasonable ground to suppose that the arrest Was justified or by other conduct of the defendant which would indicate that the wrong was committed from malicious or improper motives.

But, assuming that the evidence justified a finding of actual malice, the defendant was entitled to have the jury instructed that they must find that such malice existed before they could award exemplary damages.. No such instruction was given. The defendant again and ■ again requested the court to instruct the jury that if they believed that the defendant in good faith believed that the plaintiff was the individual who had committed the felony they must consider that fact in determining the amount of damage that they should award, and this was a proper request to which the defendant was clearly entitled. The learned trial court left it to the jury to say, not whether the defendant was actuated by actual malice, but whether it was the act of a prudent man to arrest at the railroad station a person who had been at the Manhattan Hotel all the morning getting his breakfast, and instructed the jury that if the defendant acted as a prudent man would have acted they could give nothing but compensatory damages to the plaintiff, but if he did not act as a prudent man would have acted under the circumstances, they could give more than compensatory damages, and then in response to a request of the defendant the court said: “ I leave it to you to say whether it was the act of a prudent man not to find out who the man was,”- to which the defendant excepted. This, it seems to me, was not the question for the jury to determine. Even if the defendant’s action was not that of a prudent man they were not justified in giving exemplary damages unless they found that the defendant acted with actual malice in causing the plaintiff’s arrest, and while they could consider in that connection whether the plain.tiff acted as a prudent man, there must still exist a conviction that actual malice existed before exemplary damages could be awarded.

We think that there was also another error in the charge which requires us to reverse the judgment.. The court expressly instructed the jury that these detectives, including the detective sergeant who. was a police officer, were the defendant’s agents ; that their knowl-, edge was his knowledge and their acts were his acts. That charge ■ does not seem to have been excepted to, but in relation thereto , counsel for the defendant asked the court to charge the jury that McConville, who was a. police officer, was not the agent of the defendant after the arrest was made; that the defendant was in nowise responsible for any act of McConville’s after the arrest was made; that McConville was then governed by the rules of the police department. These requests were declined and the defendant excepted. I think the defendant was clearly entitled to this instruction. While the defendant was undoubtedly liable for the acts of the subordinates that he employs to accomplish his purpose, the acts of the.police officer after the arrest, committed without the knowledge of the defendant, were not evidence upon the question of actual malice of the defendant. McOonville was a public officer, charged with the performance of a public duty. When he made the- arrest and took the plaintiff into custody, while the defendant was responsible for the arrest and detention, he was certainly not responsible for any act of McOonville, except so far as it was the necessary consequence, of his having instigated the arrest and detention; and the fact that McOonville did not treat the plaintiff with consideration, or was unduly harsh in his treatment — of which I must confess that tliei’e is little,, if any, evidence — those acts certainly could not be considered by the jury in determining whether or not the defendant was guilty of-actual malice. The question, of the defendant’s malice must be determined by the existing condition of his imirid which instigated him to cause the plaintiff’s arrest, and that ¡should not be affected by any act of the police officer who arrested the plaintiff after the arrest and without the authority or consent of the defendant. “ A principal, therefore, though of course liable to make compensation for injuries done by his agent within the scope of his employment, cannot be held liable for exemplary or punitive damages merely by reason of wanton, oppressive or malicious intent on the part of the agent.” (Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101.)

There are other questions presented upon this appeal which it is not necessary for us to determine as, for the reasons pointed out, there must be a new trial.

It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

McLaughlin and Hatch, JJ., concurred; Patterson, J., concurred in result.

Laughlin, J., (concurring):

I do not agree with the rule governing the award of exemplary damages as laid down in the prevailing opinion, yet I think' a new trial should be granted upon the ground that the verdict is excessive and that the jury were not fully instructed with reference to their duties in determining the amount of the award of vindictive damages. I understand that to warrant the award of exemplary-damages which, as the term implies, are intended not as a compensation to the plaintiff but as a punishment to the defendant and a warning to him and others against the repetition of such conduct in the future, malice must be shown but not necessarily actual malice. The malice may be either actual or express or it may be constructive or implied. In libel cases the malice may be inferred from the falsity of the publication and yet it is manifest that the inference of actual malice would scarcely be warranted from the mere falsity of the publication.

Actual malice, as distinguished from implied or imputed malice, is where the act has been performed through ill-will toward the plaintiff or with an intention to injure him. In the case of a corporation it would ordinarily be impossible to show the existence of actual malice, and yet verdicts for punitive damages in actions against them for libel have frequently been rendered and sustained throughout all the courts. Verdicts in libel cases have been sustained against an individual publisher who had no knowledge of the publication and, therefore, could not have had actual or express, malice. This, as I understand it, is upon the theory that, .although there may be no actual or express malice, the nature and consequences of the wrong may be such that the party responsible therefor may be chargeable with constructive malice implied or inferred from the facts. When, however, a court instructs a jury that punitive damages may only be awarded where malice is shown, the jury should be fully instructed with reference to the different kinds of malice or otherwise the charge may be misleading, and the jury may infer that it is incumbent on the plaintiff to show acts or declarations on the part of the defendant indicating the existence of ill-will and an intent to injure. I am also of opinion that ordinarily the jury will understand their duties if the court in instructing them would omit the term malice and charge that if the act complained of was committed wantonly or recklessly, even though without ill-will, or if the defendant was actuated by ill-will or an intention to injure, they may award punitive damages and that the amount of the award should be according to the gravity of the conduct of the defendant.

In a great number of well-considered opinions in this and other jurisdictions (See Warner v. Press Publishing Co., 132 N. Y. 181; Young v. Fox, 26 App. Div. 261; Smith v. Matthews, 152 N. Y. 152; Holmes v. Jones, 121 id. 461; Grant v. Herald Co., 42 App. Div. 354; McMahon v. Bennett, 31 id. 16) the rule is also stated that punitive damages may be awarded if the act complained of was done carelessly. On reflection I am inclined to the view that this is sound and. that, therefore, technically speaking, no error was committed in the charge in that regard. When an act of such serious consequences as depriving a citizen of his liberty is committed carelessly the act may well be characterized as reckless. A want of prudence, when the failure to exercise prudence may be of such grave consequences to the party arrested, Characterizes the act as committed in utter disregard of the rights of the party affected. Here, however, it is clear that there existed no ill-will and there wac no actual malice. It is a case where actual malice did not exist but constructive malice might be inferred or implied and imputed. By the. exercise of care and prudence, having in mind the consequences of a mistake by which an innocent man might be arrested, as was done, the arrest of the plaintiff would have been avoided. Common prudence should have dictated an inquiry at the Manhattan Hotel concerning the plaintiff; and had such inquiry been made the name under which he was registered and his identity would have been revealed. The case is one for compensatory damages for the humiliation and anguish of mind of the plaintiff, his loss of time if its value be shown and the expense to which he was subjected; and it is also a case where a jury in the exercise of a wise discretion should impose punitive damages, but not in an amount such as should be awarded if the defendant were actuated by ill-will.

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