Francis v. Tilyou

There being no appeal from the order denying a motion for a new trial, there is no basis upon which a review of the facts may be had in this court. Thurber v. Railroad Co., 60 N. Y. 326 . There was, however, a motion made at the close of the case to dismiss the complaint upon the ground that the defendant had reasonable and probable cause in procuring the arrest of the plaintiff, and also an exception taken to the charge of the court in its statement that the defendant must have reasonable and probable cause to believe that the plaintiff was guilty of vagrancy. The case is, therefore, so far before us as to require the determination as to whether the proof given upon the trial was sufficient to authorize the submission of these questions to the jury. The action is brought to recover damages for malicious prosecution in causing the arrest of the plaintiff. The case disclosed—and this without dispute—that the defendant was informed by the watchman employed by him at his bath houses that the plaintiff had attempted to break into the same, and thereupon, acting upon such information, he made a complaint to the magistrate, and procured -the arrest of the plaintiff without any warrant being issued for his apprehension. The information communicated by the watchman was, in substance, that the plaintiff had made two attempts to break into the bath houses, and, while the fact of the attempt was disputed by the plaintiff, there is no contradiction of the fact that the defendant was so informed, and immediately acted upon such information. We are of opinion that this information was sufficient upon which the defendant might safely act in making the complaint and procuring the arrest of the person of the plaintiff, although no warrant had been issued at the time the arrest was made. We have recently had occasion to reiterate the doctrine of what constitutes probable cause. George v. Johnson (Sup.; opinion by Bartlett, J.; not yet officially reported), 49 N. Y. Supp. 203 . As there was no dispute of the facts upon which the defendant acted in causing the arrest and in making the complaint, the question of probable cause was for the court (Anderson v. How, 116 N. Y. 336 , 22 N. E. 695 ); -nd upon the facts as developed in this case, bearing upon that subject, we think there was sufficient to justify the action of the defendant, and exonerate him from liability therefor. If this were all there was of the case, it would follow that error was committed in refusing to dismiss upon the defendant’s motion. But it further appears that, after the complaint was made and the arrest was had, the justice stated to the plaintiff, as testified to by him:

“ ‘George, this is a serious charge.’ I says, ‘I don’t see how you can make anything else out of it only burglary or attempted burglary.’ ‘Well,’ he says, ‘it is pretty severe. I think vagrancy is about the proper thing.’ He said I had better make it vagrancy. Then he drew up a vagrancy complaint, and I signed it, and the case was set down for trial.”

It clearly appears from this testimony that, while the arrest may be justified, the charge of vagrancy may not be disposed of under the evidence as a question of law, but upon the proof in the case such question became one of fact. The plaintiff, after the charge of vagrancy was made, was detained and held in custody upon such

charge, and that alone, and whátever justification there might have been for the arrest on the charge of burglary or attempted burglary could not avail to aid the defendant in support of the subsequent specific charge which was made. When the charge of burglary or attempted burglary was, abandoned, the plaintiff was no longer held for that, and his subsequent detention and trial could only be justified upon the fact that he was guilty of the offense of vagrancy. As to whether or not he was guilty of this offense, the proof upon the trial was inconclusive and conflicting. The plaintiff was acquitted of the charge, and the court was right in charging the jury as it did upon this subject, and was, for the same reason, also justified in denying the motion to dismiss the complaint. Upon the latter charge the question was for the jury, and, they having found a verdict in plaintiff’s favor, we are not only without authority to disturb it, but, if we possessed authority to review the facts, should be constrained to hold that there was sufficient evidence for such purpose.

The judgment should be affirmed. All concur.