Fitzpatrick v. New York & M. B. Railway Co. — 5 N.Y.S. 685

Majority

p. 685

Fitzpatrick v. New York & M. B. Ry. Co.

(Supreme Court, General Term, First Department.

May 24, 1889.)

Headnote

1. False .Imprisonment—Evidence—Probable Cause.

In an action for false imprisonment on a charge of larceny, evidence that plaintiif’s brother. Who was also arrested, was very sick at the time, is admissible to show want of reasonable ground for believing them guilty of the crime charged.

8. Same—Agents.

In such an action, where the defendant is a corporation, and the evidence as to. the agency of the persons making the arrest is somewhát conflicting, evidence that the place where the arrest was made was under defendant’s control is admissible.

3. Same—Evidence.

Where defendant’s testimony as to the origin of the charge of larceny is conflicting and the question left to the jury on that point is whether any complaint was made, it is not error to refuse to allow a witness who swears that such complaint was made to testify to the description of the thief as given him by the complainant.

Appeal from circuit court, Hew York county.

.Action for false arrest and imprisonment by George F. Fitzpatrick against the Hew York & Manhattan Beach Railway Company. The evidence showed that plaintiff and his brother, while in a building at Manhattan Beach owned by defendant, were arrested on a charge of larceny. Plaintiff’s brother testified as to the arrest, and stated, over defendant’s objection, that he was at that time a very sick man. W. C. Burnap, a witness for plaintiff, testified that at the time of the arrest he was lessee of the building in which plaintiff was arrested, and that the defendant had reserved the room in which plaintiff was arrested and imprisoned to its own use as a police station and cell. The arrest was made by detectives acting under the orders of one W. C. Wilkin

p. 686

son, who testified, on behalf of defendant, that he was first informed of the theft by the detectives. The latter testified that they first heard of it irom Wilkinson. The evidence was somewhat conflicting as to whether or not these men were employed by the defendant. Plaintiff obtained judgment. Defendant appeals.

Argued before Van Brunt, P. J„ and Daniels and Bartlett, JJ.

William J. Kelly, for appellant. P. K. Coudert, for respondent.

This action was for false arrest and imprisonment of the plaintiff by a policeman and detectives claimed to be in the employ of the defendant. Two persons were arrested at this time under precisely the same state of facts. The other person arrested, being the brother of the plaintiff, James C. Fitzpatrick, brought an action against the defendant, and recovered damages for such arrest. The grounds upon which the defendant sought to relieve itself from such recovery were the same as those which were raised upon the trial of the case at bar. Upon appeal to the court of appeals the verdict was sustained for the reasons given in the dissenting opinion of Mr. Justice Brady. The affirmance will be found in 101 N. Y. 617 , and the decision of the ease at the general term is partially reported in 15 Wkly. Dig. 506 . It is not at all necessary to reconsider the questions which were raised in that case, and determined against the defendant. The only points to be considered are the exceptions which have been raised to. the admission of evidence.

The question as to the physical condition of the plaintiff’s brother does not seem to have been objectionable, in that it was part of the plaintiff's case to show that the persons making the arrest had no reasonable ground to suppose that he and his companion had been guilty of tile theft charged.

The testimony of Burtiap was also entirely admissible, because such testimony was offered for the purpose of showing that the premises upon which a large part of this trespass was committed were under the control and management of the defendant. The other exceptions, criticising the manner of the cross-examinations, were not at all well taken. In fact, the only question which seems to be specially criticised was never answered. The objection to the refusal of the court to allow the witness Wilkinson to testify as to the description given him by the complainant on which the alleged arrest was claimed to be made is not well founded, in that no question of this kind seems to have been presented to the jury. The naked question left to the jury upon the commission of the crime was whether any complaint whatever had ever been made to these detectives, there being an irreconcilable conflict of testimony between them as to its origin. The judgment should be affirmed, with costs.