Davern v. Drew — 28 N.Y. Crim. 484

Majority

p. 484

SUPREME COURT—APP. DIVISION—FIRST DEPT.,

December, 1912.

JAMES F. DAVERN v. WALTER DREW.

(153 App. Div. 844.)

Headnote

.(1.) Abbest—Exteadition—Liability bob action bob false impbisonMENT INSTIGATED BY PBIVATE PBOSECUTOB.

In an action for false imprisonment against a city magistrate, two police officers and D., it appeared that plaintiff’s brother was indicted in the State of Ohio and that a warrant was issued upon extradition papers for his arrest in this State and delivered to the police eommis■■sioner of the city of New York. The defendant D., the executive officer of an organization of firms formed for the .purpose of mutual assistance in the conduct of labor matters, who was engaged in the investigation of crimes committed by the members of such firms, informed ithe police captain that he had a man in his employ who coul,d positively identify the person wanted. Two officers were sent with .this man and arrested the plaintiff, who stated his identity and said that he was .the brother of the man wanted. D. had a personal conversation with the plaintiff after his arrest, and, on .his own initiative, telegraphed the Ohio authorities for a description of the man wanted. Plaintiff was taken before a city magistrate, in violation of section 827 of the Code of Criminal Procedure, which requires a .person under extradiction papers to be taken before a justice of .the Supreme Court or of the Court o-f General Sessions.

Evidence examined, and held, sufficient to sustain a finding that D. instigated and engineered the whole proceeding, acting as private prosecutor for the benefit of the association of which he was an officer, and that he was responsible for the arrest.

(2.) Same—Chabge that abbest must be made in bad faith and to deceive POLICE OBBICEBS, PBOPEBLY BEFUSED.

A request to charge .that D. could not be held liable, unless he caused the arrest in bad faith and for the purpose of deceiving the .police officers, was properly refused.

Appeal by the defendant, Walter Drew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the

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office of the clerk of the county of New York} on the 3d day of February, 1912, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 6th day of February, 1912, denying the said defendant’s motion for a new ■trial made upon the minutes.

Jtihn W. Mart, of counsel (Paul Kiefer with him on the brief), for the appellant.

Sumner B. Stiles, of counsel (iP. Menry Delehanty, attorney), for the respondent.

The action was brought against a city magistrate, two police officers and the appellant Drew. The jury found a verdict of six cents against the magistrate, exonerated, the police officers and found for $2,000 against Drew.

• On February 5, 1907, the grand jury at Ashtabula, O., indicted one Stephen Davern upon the ground of felonious assault. On May 11, 1908, the Governor of the State received extradition papers from the Governor of Ohio and issued his warrant which was received by the police commissioner on May 12, 1908. The claim was that on July fourteenth Drew caused the plaintiff to be identified as Stephen Davern, the person whose arrest and extradition was called for by said papers. He was arrested, locked up, taken before the magistrate, photographed, measured, his finger prints taken, and held over until the sixteenth, when a telegram was received from the Ohio authorities that the person held was not Stephen Davern but his brother James F., whereupon he was discharged.

Plaintiff testified that he was an ironworker; that in July, 1908, he was living at 365 West Nineteenth street; he had been a resident of the State and city six to eight years; he was working and had been working just before July fourteenth for

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the George A. Fuller Construction Company. He had received a fall on the twelfth of May and had been laid up by reasoú thereof and been under the doctor’s care until July fourteenth.

Drew was the exective officer of the executive committee of the National Erectors’ Association, composed of a number of firms formed for mutual assistance. in the conduct of labor matters. It was his special business to render such assistance as he could whenever said members of the association had any trouble in connection with carrying out their labor policy, and it was his duty to investigate crimes of violence, and to gather evidence of the commission of any crimes of violence in connection with such members. It seems that he had had previous relations with Police Captain Carey, who was at that time in the detective bureau: He also seems to have had a man by the name of Harry Boss, or “ Bed ” Boss, a structural ironworker foreman, more or less in his employ. It is quite evident that Boss was a spy working from within the labor ranks who gave information to this executive member. Drew testified: “As executive member of my association I have been interesting myself for a considerable period of time in ascertaining the whereabouts of Stephen Davern prior to this arrest.” Drew informed Carey that Boss had known Stephen Davern for a number of years and could identify him as the person wanted under the extradition and that if Carey would send officers to Drew’s office he would introduce them to Boss and Boss would snake the identification. Carey directed officers Wood and Fogarty to see Drew and go with Boss and upon his identification execute the warrant. This they did.

They were- introduced to Boss and went with him to the neighborhood of plaintiff’s house. The officers testified that Boss pointed out plaintiff to them on the sidewalk and that they arrested him; that he said he was not Stephen but was Jim, and that he called up to his wife, “ Girl, they have got me arrested for Steve,” and she came down, brought him his

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coat and protested that he was Jim; that he showed his watch in which his name was^ engraved, but nevertheless he was taken down to police headquarters. Carey telephoned to Drew and Drew came to police headquarters; there again plaintiff asserted his identity and produced his labor cards for purposes of identification and insisted that he was Jim and not Steve. Plaintiff testified that Drew then said to him: “£ You are Stephen Davern; we have got the goods on you and you might as well throw up first as last; we have got you right anyhow, dead right,’ he says, £ and you might as well throw up right here and be done with it and it will go easier with you.’ * * * In the court room * * * he says, ‘ You might as well make it easy for yourself; we have got you now.’ * * * When they took me down into the court the next afternoon Mr. Drew came over * * *. He says, £ I have looked you up; I have been over to Thompson & Starrett’s office and I have looked over their books * * *. You were away off the job three days; you had time to go to Ashtabula and come back and turn that trick off. Why don’t you give up and be done with it? ’ -x- * * l will swear Mr. Drew spoke to the magistrate on the first day that I was brought before Magistrate Breen. * * * Mr. Drew was there * * * the second day, the 15th of July. '* * * On that occasion when I came into the court room and he came right up to me and sat down alongside of me.”

Drew testified: ££ Captain Carey showed me this little book that has—his due book, plaintiff’s exhibit 1. I called Captain Carey’s attention to the fact that his own book showed that he had been in Cleveland and Ashtabula just a few.months prior to this assault.” Plaintiff was taken before a city magistrate, in violation of the provisions of section 827 of the Code of Criminal Procedure, which require a person under extradition papers to be taken before a justice of the Supreme Court or a county judge, who in the county of Hew York would be a

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justice of the'Court of General Sessions, and provide for a speedy hearing and for testing the question of identity in a habeas corpus proceeding. Before the magistrate a short affidavit was made by one of the officers, Fogarty, and the magistrate was asked to commit him for twenty-four hours, which he did. They came down again the next day and another request for twenty-four hours’ adjournment was made and given. In the meanwhile Inspector McCafferty, on July fourteenth, had telegraphed out to the prosecuting attorney at Jefferson, O.: “ We have arrested a man answering description of Stephen Davern, claims his name is James F. Davern, and that he is a brother of Stephen Davern, and he was in Ashtabula in May, 1907, and is known to -Chief of Police Task. Answer.” On the fifteenth Drew, on his own initiative, telegraphed to the prosecuting attorney: “Wire immediately complete description of man wanted, including complexion, eyes, nose, teeth, shape of face, weight and also points of .difference between him and James. Which one has scar between eyes? Man here is identified as Steve and will be held until to-morrow noon.” On the sixteenth Taylor, the prosecuting attorney at Jefferson, telegraphed to McCafferty a description of Steve, saying also: , “ Jim wore mustache when seen in Chicago two weeks ago; they both would fit this description exception of mustache. Can’t you forward picture of man and hold him. Charge fugitive from justice until picture is identified. Answer.” And also telegraphed Walter Drew, commissioner National Erectors’ Association: “ Have just had description sent by officers in Ashtabula to Inspector McCafferty. Satisfy yourself before release.” On the seventeenth Taylor wired to McCafferty; “ Photograph received. Man arrested is James Davern and not Steve. Pelease.” And thereafter the plaintiff was released from custody. It is very significant that Drew admits that he did not communicate these telegrams to Captain Carey. This shows he was acting on his own initiative and judgment and

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did not rely on Carey. It also appears that Carey and the officers did nothing without the presence of Drew and were evidently relying upon him.

This is a brief statement of this record, but from it it is clear, I think, that Drew, in the prosecution of his work, gave information to the police and instituted the proceedings under which the plaintiff was arrested. He informed them that he had a man who would positively identify Steve Davem and he produced the man and put him in contact with the police. He was immediately called down to headquarters after the arrest and had himself a personal conversation with the plaintiff. He also appeared in the police court and he also busied himself in sending telegrams to Ohio. His general authority in the matter is illustrated by the telegram of the prosecuting attorney at Jefferson that he should satisfy himself before release. He attempts to avoid responsibility upon the ground that he merely gave information to public officials and, therefore, was not personally responsible for the exercise hy them of their discretion and determination upon information, and he also repudiates the suggestion of identification upon his own part, but that he simply put them in touch with the man whom he believed upon his own knowledge could make the identification.

In Grinnell v. Weston ( 95 App. Div. 454 ), Mr. Justice Ingraham,'in discussing the question, in reviewing Thompson v. Fisk ( 50 App. Div. 71 ), said: “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 in good faith and was justi

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tied 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 tortfeasors 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 * * * 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 ¿f 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.

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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 making the arrest, and this is the effect, I think, of all the authorities. * * * 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.’ ”

I think that there can be no doubt that this arrest was instigated by Drew. At any rate it was a fact for the jury. It was not error not to direct a verdict or to dismiss the complaint as to him. In regard to Drew the court charged: “ Mow, as to defendant Drew, if you determine, gentlemen of the jury, that the defendant Drew did nothing more or less than simply furnish information to the police authorities, upon which they acted, and that although there was a mistake in such information, the information was furnished in good faith, and simply for the purpose of aiding the police in apprehending the party mentioned in the Governor’s warrant, then your verdict ought to be for the defendant Drew, but, if the proceedings that led up to the arrest of this plaintiff were instituted by Drew, if he directed by any method the arrest of this man, although he was not present at the time, if he directed the arrest and aided it, why, then your verdict ought to be for the plaintiff as against the defendant Drew.” And again: “Mow, as to the defendant Drew, if you determine that the plaintiff is entitled to a

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verdict as against the defendant Drew, yau have a right to consider the position he was in,, the information that he furnished, Avhether he was misled into that position, all these are circumstances that may be considered by the jury in (determining what would be a proper compensation to award the plaintiff, if you find the plaintiff is entitled to a verdict, and such verdict may be from six cents upwards.”

Counsel for Drew said “I ask your honor to charge the jury that from the time the plaintiff was taken into custody by the police officers he was subject to the control and direction of the said officers, and subsequently to the magistrate before whom he was arraigned, and the defendant Drew had no power to require either the detention or the release of the prisoner, and cannot be held liable for the exercise of any judgment or discretion on the part of such police officers or magistrate, unless it is proven to the jury’s satisfaction that the defendant Drew in bad faith and with the purpose of deceiving the police officers caused the arrest and detention of the plaintiff. The court: I refuse to charge in the language requested.’ That refusal was proper because the latter part of that request injected “ bad faith and with the purpose of deceiving the police officers,” which is riot an element. Counsel for Drew. “(Exception.) I ask your honer to charge the jury that the defendant Drew is not liable for the imprisonment of the plaintiff on the commitment by the city magistrate. The court: I refuse to charge that. * * * (Exception.) The court: I charge the jury that if the action of the defendant Drew was not for the purpose of giving information, but was for the purpose of bringing about the arrest of this plaintiff, and if you find that the plaintiff is entitled to a verdict against the defendant Drew, he is liable for all subsequent acts, if the proceedings were incited or started by him and were not started for the purpose of furnishing information to the police. (Counsel) : I except to that.”

Dissent

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It seems to me that the court was right; that if this whole proceeding was instigated, planned and engineered by Drew, as the jury had a right to-find from the evidence, acting in his capacity as private prosecutor for the benefit of the association of which he was the executive officer, then it must follow, I think, that he was responsible for all the logical and necessary consequences of such act.

On this record Drew was absolutely responsible for this arrest; at least it was a question of fact for the jury and the evidence is sufficient to sustain the verdict. The amount of the verdict, however, seems excessive and should be reduced to $1,000.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the verdict to $1,000; in which event the judgment as so modified and the order appealed from will be affirmed, without costs in this court to either party.

Laughlin and Miller, JJ., concurred; Iwg-raham, P. J., and Scott, J., dissented.

The action is for damages for false imprisonment.

It appears that at some time prior to February 5, 1907, one Stephen Davern, the plaintiff’s brother, was indicted in the State of Ohio for felonious assault. A request for the arrest and extradition of said Stephen- Davern was transmitted by the Governor of Ohio to the Governor of this State who thereupon issued his warrant for the arrest of said Stephen Davern, which warrant was received by and filed in the office of the police commissioner of the city of Mew York on or about May 11, 1908. It thereupon became the duty of the police to arrest the said Stephen Davern if he should be found within the city of Mew York.

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The defendant Drew resided in the city of Hew York, was the commissioner and executive member of the executive committee of the Hational Erectors’ Association, an organization of firms engaged in the business of erecting structural steel and iron work, which was formed for the purpose of mutual assistance in the conduct of labor matters. Drew had had nothing to do with the indictment of Stephen Davem in Ohio-, but it was a part of his duty to aid in the investigation and prosecution of crimes in consequence of labor troubles, as it is to be inferred that the crime charged against Stephen Davern had been. Drew did not know Stephen Davern, but he received information from one Boss, who claimed to know Davern, and to have worked with him, that said Stephen Davem was in the city of Hew York. He communicated this information to Police Captain Carey. The police authorities thereupon interrogated Boss, and upon his identification, arrested plaintiff, believing him to be Stephen Davern. Otherwise, than as above stated, Drew had no part in thé arrest of plaintiff. He did see him at police headquarters and in court, and interrogated him as to his identity, and sent a telegram' to the prosecuting attorney in Ohio asking a description of the real Stephen.

The plaintiff has sued, in addition to the appellant, the two police officers who made the arrest and the city magistrate who held the plaintiff. The jury exonerated the police, officers, found a verdict for six cents damages against the magistrate, and a substantial verdict against the appellant.

The trial justice charged the jury as follows: “How, as to the defendant Drew, if you determine, gentlemen of the jury, that the defendant Drew did nothing more or less than simply furnish information to the police authorities, upon which they acted, and that although there was a mistake in such information, the information was furnished in good faith, and simply for the purpose of aiding the police in apprehending the party mentioned in the Governor’s warrant, then your verdict ought

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to be for the defendant Drew.” This was not only an accurate statement of the law (Brown v. Chadsey, 39 Barb. 253 ; Farnam v. Feeley, 56 N. Y. 451 ; Teal v. Fissel, 28 Fed. Rep. 351 ; 19 Cyc. 329), but it constituted the law of the case for the jury which it was their duty to follow. If they followed it they should have found in favor of the appellant for there is not a particle of evidence that he did anything more than to communicate to the police, in good faith, information which he believed. That he was desirous that Stephen Davem should be apprehended we do not doubt, and no blame can properly attach to him for entertaining such a desire, but there is nothing to suggest even a suspicion that he was actuated by any motive hostile to plaintiff.

The verdict, we are all agreed, was too large in any view of the case. It was enhanced no doubt by the erroneous charge that appellant might be held liable, if liable at all, for everything that was done by the police or the city magistrate after the arrest, including the erroneous arraignment of plaintiff before a city magistrate, instead of a justice of the Supreme Court, or a judge of the Court of General Sessions. With these matters appellant had nothing to do and was not chargeable with damages by reason of them. (Gearity v. Strasbourger, 133 App. Div. 701 ; Whitney v. Hanse, 36 id. 420; Newman v. N. Y., L. E. & W. R. R. Co., 54 Hun, 335 ; Lock v. Ashton, 18 L. J. [N. S.] Q. B. 76.)

The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

InoBAHAM, P. J., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event, unless plaintiff stipulates to reduce verdict to $1,000, in which event, judgment as so modified and order affirmed, without costs. Order to be settled on notice.

Cases cited

Farnam v. Feeley 56 N. Y. 451 N.Y. 1874-05-26 p. 491, p. 495
Brown v. Chadsey 39 Barb. 253 N.Y. Sup. Ct. 1863-02-09 p. 495