Shea v. Manhattan Railway Co. — 15 Daly (N.Y.) 528

Majority

p. 528

Thomas J. Shea, Respondent, against The Manhattan Railway Company, Appellant.

(Decided February 3d, 1890.)

Headnote

A witness for plaintiff, after hearing plaintiff’s testimony as to occurrences at which both were present, testified that he agreed with plaintiff as to certain facts, although previously he had sworn that his impressions were otherwise. Held, that this was a corroboration of plaintiff’s testimony.

In an action against an elevated railroad company for false imprisonment in causing the arrest and detention of plaintiff, who was engaged in an altercation with defendant’s depot guard late at night, the proceedings before the magistrate the following morning, when plaintiff was discharged, are admissible in evidence, as part of a continuous transaction; and they are properly proved by the court records.

Appeal from a judgment of the General' Term of the City-Court of New York affirming a judgment of that court entered upon the verdict of a jury and an order denying a new trial on the minutes.

The action was brought for an assault and battery, false imprisonment, and malicious prosecution, growing out of an altercation between a station platform guard in defendant’s employ and plaintiff and a friend, Fuller, when about to board one of defendant’s trains at about eleven o’clock at night. A police officer appearing on the scene, the guard asked for their arrest and went to the police station with them, and plaintiff and Fuller were locked up over night, but were discharged next morning after a hearing. The court at the trial required plaintiff to elect between his cause's of action, and he elected to make the action one of false imprisonment. The jury found a verdict for plaintiff for $1,500. A motion by defendant for a new trial was denied, and judgment for plaintiff was entered on the verdict. From the judgment and the order denying the motion for a new trial, defendant appealed to the General Term of the City Court,

p. 529

which affirmed the judgment and order; and from this decision defendant appealed to this court.

Edward S. Rapallo and Henry D. Sedgwick, Jr., for appellant.

Wm. King Hall, for respondent.

I concur with the General Term of the City Court in holding that no error necessitating a reversal was committed by the trial judge in refusing to charge the abstract proposition “ that the jury were at liberty wholly to reject the plaintiff’s testimony, so far as it is not corroborated by other evidence.” Plaintiff’s evidence was corroborated by the testimony of Fuller on the. question of how much he had been drinking. It may be thought that Fuller’s corroboration under the circumstances amounted actually to Very little, as he confessedly had been drinking more than the plaintiff had. Still there was corroboration on this point for what it was worth, and it was for the jury to say how much it was worth. What Fuller said was really corroboration, though defendant argues that it was not, on account of the form in which it was- put. Plaintiff testifies that he drank .only a small bottle of claret with his dinner, and that he did not drink beer or other stimulants in the saloon which he entered with Fuller and a third friend later. Fuller testified that he had been under the impression that plaintiff did take a glass of beer in said saloon, but, after hearing plaintiff’s testimony, he agreed with plaintiff as to the facts. This is equivalent to having one’s memory réfreshed on a point on which one was not very certain, and afterwards testifying positively. There was therefore corroboration, however weak it may have been intrinsically, to plaintiff’s statement about his condition as to sobriety; and Fuller also corroborates plaintiff substantially in his narrative of the circumstances leading to the fight and the arrest on the platform.

On the question whether or not the policeman arrested plaintiff at the instigation of defendant’s employé or upon his own responsibility, plaintiff’s version of the affair is cor

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roborated by the record from the police court, which shows that the complaint the next morning before the magistrate was made and signed, not by a policeman, but by defendant’s platform-man.

Upon the material points of the case, plaintiff produced corroboration of some kind, and the request to charge submitted was therefore, in the form in which it was presented, not material. I may add that I do not think there are any substantial merits in this exception, because the judge did instruct the jury in his charge that if they believed plaintiff’s testimony they could find a verdict for him, but that if they believed defendant’s witnesses the result must be different. This was in effect charging what defendant had embodied in his request.

Defendant also complains of the admission of the record of the proceedings before the magistrate; but, on this point, the language of Daniels, J., in Brown v. Christopher & Tenth St. R. Co. ( 34 Hun 471 ), bears very aptly.

“ What was done was a continuous act, beginning with the attempt of the driver to remove the passenger, and terminating only with his discharge the next morning by the court before which he was taken. . . To present the case clearly to the jury, the evidence of what occurred after the plaintiff was taken from the car and-up to and including the time of his discharge was proper for their consideration. It simply exhibited the development of the events naturally following and arising out of the unlawful act of the driver in endeavoring to remove plaintiff from the car.”

If the altercation on the elevated railroad platform had occurred in the morning, instead of at night, so that plaintiff might have been taken before the police justice, and the gate-man’s complaint against him made immediately, the fact that the whole performance constituted but one continuous act would have been more clearly apparent. But the legal status and liability are the same, whether defendant’s gate-man procures the arrest of plaintiff and enters a complaint against him on the same day, or is obliged to wait to make such complaint till the opening of court on the following

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morning. It all constitutes one continuous act of imprisonment, which the jury have pronounced false imprisonment. The arraignment of plaintiff before the police justice was an inevitable concomitant and sequence of his arrest, and proof of it did not make the cause of action tried in this case trench on malicious prosecution. The proceedings before the magistrate were .properly admissible under the declaration for false imprisonment which plaintiff elected to rely on.

If the record of such proceedings was admissible, it had to be received in its entirety as the official record of an inferior court. Appellant objects strenuously to the form of proof of this record. Still, in the absence of any statutory provision regulating the admissibility of the records of proceedings before police magistrates, I think we are relegated to the common law rule as to proof of the judgments of courts not of record, which is well stated in Greenleaf on Evidence, vol. 1, section 513.

“ The judgments of inferior courts are usually proved by producing from the custody the book containing the proceedings. And as the proceedings in these courts are not usually made up in form, the minutes, or examined copies of them, will be admicted if they are perfect. If they are not entered in books, they may be proved by the officer of the court, or by any other competent person. In either case resort will be had to the best evidence to establish the tenor of the proceedings ; and, therefore, where the course is to recol'd them, which will be presumed until the contrary is shown, the record, or a copy properly authenticated, is the only competent evidence.”

In the case at bar the original record of the proceedings was itself produced, and a copy thereafter used by stipulation of counsel in lieu of retaining the original.

In the other exceptions taken by appellant we find nothing calling for remark.

The judgment should be affirmed, with costs.

Bookstaver and Bischoff, JJ., concurred.

Judgment affirmed, with costs.