Majority
p. 150Kate F. Monjo, Resp’t, v. Domingo M. Monjo, App’lt. (Supreme Court, General Term, Second Department, Filed June 28, 1889.)
Headnote
False impbisonment—Damages.The defendant procured a decree of divorce from plaintiff. The decree also awarded him the custody of the children; but the plaintiff kept from him the custody of the youngest. Defendant found his child with the plaintiff in a restaurant, and upon her refusing to give it up, caused her arrest and imprisonment in a station house. This action was brought for false imprisonment and plaintiff obtained a verdict for $3,000. Held, that plaintiff’s arrest was illegal, and that the damages were not excessive.
Appeal from a judgment entered on the verdict of a jury.
The action was brought to recover damages for alleged false imprisonment. The plaintiff obtained a verdict for $3,000.
F. L. Bushe (George F. Wingate, of counsel), for appl’t; James M. Lyddy, for resp’t.
The general facts which surrounded this case are undisputed. In April, 1888, the defendant procured an absolute divorce from the plaintiff. The decree awarded the custody of the children to the defendant. He had two of them, but the plaintiff kept from him the possession of the youngest. In August, 1888, the defendant found his child with the plaintiff, her mother, in a restaurant in New York. The defendant had the decree which entitled him to the child, and the wife, the plaintiff, refused to give her up. A policeman was finally called in, and the dispute drew a crowd of people. The policeman, finally, by direction of
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defendant, arrested the plaintiff and conducted her to the station house. The sergeant in charge took a minute of some charge, it does not appear what; and the wife still refusing to give up the child, she was locked up in the station house all night with her little daughter, the subject of the dispute. On the next morning the police justice gave up the child to the defendant and discharged the plaintiff. The only dispute is to the fact whether the arrest and detention was caused by defendant’s order, and the jury have found for the plaintiff upon the issue. The defendant mistook his remedy. He could have taken the child by force if the decree allowed, in a gentle manner, but he could not arrest the plaintiff because she refused to voluntarily give up the child. Assuming an illegal arrest, the damages are not excessive. The plaintiff was taken to a public place and conducted through a public street to the station house and detained in a lock-up or cell under surroundings which would humble and humiliate her. There was no evidence tending to show that the arrest was made for a breach of the peace, or for acts which tended to a breach of the peace. A request to charge must rest upon evidence. The jury may find a fact against the statement of both the parties, it is true, but there must be evidence in the case somewhere which justifies such a finding. This evidence is nowhere to be found in this case. The arrest was a mistake in the law on the part of the police officer, and the only question was whether the defendant directed it.
The judgment should therefore be affirmed, with costs.
Dykman, J., concurs.