Tupper v. Morin — 25 Abb. N. Cas. 398

Majority

p. 398

TUPPER v. MORIN.

N. Y. Supreme Court, First District, Chambers ;

October, 1890.

Headnote

1. Jurisdiction; action for false imprisonment in foreign country.] The supreme court of .this State not only has, but is bound to entertain, jurisdiction of an action between residents thereof for false imprisonment and malicious prosecution of the plaintiff by her arrest and imprisonment in a foreign country.

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2. Arrest in action for tort; motion to vacate.] Where, upon motion to vacate an order of arrest of defendant in an action for false imprisonment and malicious prosecution, the plaintiff having been arrested for felony without warrant pursuant to orders given by defendant as a police officer, it cannot be determined" in his favor that he had reasonable cause for believing that the plaintiff had committed the crime, the order should not be vacated, but the issue should be left to be determined at the trial.

•3. Place of trial; action against chief of police for false imprisonment.] Under Code Civ. Pro. § 9S3, subd. 2,—requiring an action against a public officer for an act done by him by virtue of his office to be tried in the county where the cause of action or some part of it arose—an action against the chief of police of the city of Buffalo for the false imprisonment of the plaintiff by her arrest in Canada, pursuant to a" telegram of the defendant sent from Buffalo in Erie county, must be tried in that county.—So held, on motion to change the place of trial from the county of New York.

Motion to vacate an order of arrest and to change the place of trial.

This action was brought by Edith S. Tupper against Martin Morin for an arrest of plaintiff on a criminal charge.

Plaintiff alleged that heretofore, and on July 19, 1890, in the city of Toronto, province of Ontario, the defendant, with force and arms, wrongfully, maliciously and unlawfully assaulted or caused to be assaulted this plaintiff, -and then and there with force and arms wrongfully and unlawfully seized or caused to be seized this plaintiff, and then and there laid hold of her, and with force and violence •and against her will took and caused to be taken this plaintiff from the depot of the said city of Toronto, at about the hour of nine o’clock in the evening, and then and there forced her against her will to go to a room or building ■occupied by one Henry Reburn, and did force and compel her against her will to go in and along divers public streets to the said room or building, which was a certain police ■office or station, situate and being in the said city of Toronto, and then and there with force and arms did imprison and 'Cause to be imprisoned this plaintiff against her will, and

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did then and there with force and arms keep or cause to be kept and detained this plaintiff in said police station or prison against her will and without any reasonable or proper cause whatever, and did then and there with force and arms detain or cause to be detained this plaintiff against her will, until about the hour of one o’clock in the morning of July 20, 1890 ; the complaint also containing allegations of mental suffering, nervous prostration, etc., by reason of the-arrest.

Tracy C. Becker, for defendant and the motion.

A. C. Wade (Cook, Fisher & Wade, attorneys), for the. plaintiff, opposed.

There can be no serious cause for doubting-the jurisdiction of this court over this action, either as one-for false imprisonment or malicious prosecution. The facts, if the defendant’s liability shall be maintained, will probably warrant its characterization as false imprisonment.

It is not within the rule mentioned in Burdick v. Freeman^[1] (10 N. Y. State Reporter, 756) or either of the authorities supposed to apply to it. For in this action the plaintiff' resides in the city of New York and the defendant in the city of Buffalo. If jurisdiction over the action should be-declined, then the plaintiff would be practically without redress against the defendant, for there is no reason for be

* In that case the rule was reiterated that non-residents may sue each other in our courts for tort committed in another State; but whether the court will retain jurisdiction in such action, rests in the-discretion of the court [citing Gardner v. Thomas, 14 Johns. 134 ; Johnson v. Dalton, 1 Cow. 543 ; Molony v. Downs, 8 Abb. Pr. 306 ; DeWitt v. Buchanan, 54 Barb. 31 ; Newman v. Goddard, 3 Hun, 70 ; Lister v. Wright, 3 Hill, 320 ; Latour’ette v. Clarke, 30 How. 242 ; McIvor v. McCabe, 26 Id. 257 ]; and it was. held that the fact that a party is: acquainted in his own State, or that there is fear that he may influence a jury in that State, are not reasons that are recognized for retaining; jurisdiction.

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lieving that she could obtain service of process upon him in the Province of Ontario, where, under his directions, she was arrested and for the time imprisoned. It is not the case of non-residents of the State bringing and contesting an action here for a wrong committed beyond the territorial limits of the State. For here' both parties reside within the State, and are amenable to its laws, and the party injured by the act of the other has the right to appeal to those laws for redress. In addition to that the act of the defendant was committed within this State, which produced the plaintiff’s arrest and detention. No authority has been found doubting the jurisdiction of this court over such an action, and there is no principle sustaining the propriety of such a doubt. But the conclusion is fully warranted that the court not only has jurisdiction, but in addition to that, it has no power to disclaim it.

The plaintiff was arrested in the city of Toronto for a felony committed in the city of Buffalo. The arrest was made without process and wholly upon information proceeding from the defendant. The orders to arrest her were sent by telegraph and were positive in their nature. And those positive orders were repeated, after some evidence of the identity of the person had- disappeared. She was not the felon, but 'in a strange city, alone, and in the night time,, she was arrested for the crime of another, in which she was; not only not a participant, but knew nothing whatever of its commission, or the person who committed it. .This was an unwarrantable interference with her personal liberty, and should not have been ordered without very satisfactory evidence against her. The defendant claims to have been supplied with that degree of evidence. But the fact that he was, or that he acted with that degree of caution which is due to the liberty or security of an innocent person, is not so clearly established as to justify an order vacating the order for his arrest in this action for damages. An officer may make, or direct, the arrest of a person for a felony without a warrant. But to escape liability for making an unfounded

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arrest lie must be able to excuse himself by proof that he had reasonable cause for believing that the person arrested had committed the crime (Code Crim. Pro. § 177, subd. 3). Whether in this case the defendant had that cause for belief cannot be determined in his favor upon the affidavits used upon this motion. And where that is the nature of the proof, the tribunal where the controverted subject is to be determined is that at which the trial of the issue is regularly to take place. Upon neither ground, therefore, can the order of arrest be vacated.

But on the other branch of the motion the defendant is entitled to succeed. His act, by which the plaintiff was arrested and detained, was done in the city of Buffalo, whose officer, as the superintendent of its police, he is. In that capacity he ordered the plaintiff’s arrest. That order was given and repeated at the city of Buffalo. It was an official act (People v. Schuyler, 4 Com. 173, 151). And by subd. 2 of section 983 of the Code of Civ. Pro. an action against a public officer for an act done by him in virtue of his office, must be tried in the county where the cause of action, or some part of it, arose. This cause of action is within this section, for some part of it did arise in the city of Buffalo. That consisted of the orders for the plaintiff’s arrest, and they were given at that place. And as no objection to the demand, or the time when, in reference to its service, the motion has been made, the place of trial must be changed from the county of Hew York to the county of Erie.

The same result will likewise follow from the affidavit and stipulation as to the residences of the witnesses. The preponderance is in the county of Erie, where the cause of action, or at least a substantial part of it, arose. And for that reason also the defendant is entitled to have the place of trial changed to that county.

■ The suggestion that an impartial trial will not be obtained there has no foundation. The population of the county and the extent of area from which the jurors will be drawn, are sufficient at once to dispel this suspicion.

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But, as already stated, the motion to discharge the order -of arrest will be denied, and the motion to change the place •of trial will be sustained, and the place of trial changed from the county of New York to the county of Erie, and •the costs of the motion will abide the result of the action.