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Zwickert v. Brooklyn Heights Railroad

111 N.Y.S. 480 Court N.Y. App. Div. Decision date 1908-06-18 English

Delivered by RICH, J.

Contents

Majority

p. 480
ZWICKERT v. BROOKLYN HEIGHTS R. CO.
(Supreme Court, Appellate Division, Second Department.
June 18, 1908.)

Headnote

False Imprisonment—Grounds of Liability.
A defendant In an action for false imprisonment is not liable, unless it took some part in bringing about the arrest in question; and where there is no question as to the illegality of the arrest, but the issue is on defendant’s connection therewith, an instruction that, if defendant makes no claim that there was any crime committed by plaintiff, the simple question is whether there was or was not an imprisonment and restraint of plaintiff’s person, is erroneous.
p. 481
Appeal from Trial Term, Kings County.
Action by Herman Zwickert against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, defendant appeals.
Reversed.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILDER, JJ.
D. A. Marsh, for appellant.
William A. McQuaid, for respondent1.

Plaintiff has recovered a judgment against defendant for false arrest and imprisonment. It conclusively appeared upon the trial that plaintiff had committed no crime and that his arrest was illegal and unjust. The question litigated was whether the arrest was caused by defendant. Clearly the defendant was not liable for the arrest unless it took some part in bringing it about, and, while this was the real question of fact to be presented to the jury, the trial justice charged at the request of plaintiff’s counsel:

“That if the defendant makes no claim that there was any crime committed by this plaintiff, the simple question for the jury to determine is whether there was or was not an imprisonment and restraint of the person of the plaintiff.”

The effect of this charge was to take from the consideration of the jury the question whether the defendant was responsible for the arrest. This charge was erroneous, and the judgment and order must be reversed, with costs.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.