Isaacs v. Flahive — 70 N.Y. St. Rep. 450

Majority

p. 450

Hannah Isaacs, Resp’t, v. John H. Flahive, App’lt.

(New York City Court, General Term,

Filed October 29, 1895.)

Headnote

1. False imprisonment—Officer acting without warrant.

Where there is at the time no breach of the peace, but simply the question of the possession of a trunk, the plaintiff has a right, as against a. policeman who is there without legal process, to protect and defend her property or the possession of any property to which she claims a right, and the fact whether plaintiff is a boarding house keeper and has a license to keep the same, or has a right to retain the trunk in dispute, is entirely immaterial.

2. Assault.

Any assault or act of violence committed by the policeman on such premises in taking the trunk, is at his peril and he is liable in damages therefor.

3. Trial—Charge.

The trial justice is not bound to charge every proposition of law requested, even though correct, unless it is pertinent to the issues and has not been covered by his previous charge.

Appeal from a judgment in favor of plaintiff.

Morris Goodhart, for app’lfc; Maurice Mayer, for resp’t.

About three or four weeks prior to the 16th day of February, 1894, one Minnie Raphael, a young woman, not then of age, was brought by a Mr. Goldsmith to the house or apartments of the plaintiff, at Ho. 2075 Second avenue, in the city of Hew York, where she boarded for about three weeks. She left without notice, leaving behind her trunk. The price agreed upon for her board was six dollars per-week, none of which has at any time been paid. Ten days after she left, and on the 16th day of February, 1894, the defendant, who was a police officer, assigned to special duty at thp Institution of the Hebrew Sheltering Guardian Society, went to the plaintiff’s premises, and, against the will

p. 451

and protest of the plaintiff, forcibly removed the trunk, at the same time assaulting the plaintiff, who resisted its removal. Subsequently, and as a part of the same transaction, the plaintiff continuing to resist his attempts to take the trunk, he arrested the plaintiff, and at the station house charged her with assaulting him, a police officer, while in the discharge of his duty. The defendant had gone to the plaintiff’s residence without any warrant or other legal process of any kind, and simply under direction of the superintendent of the Hebrew Sheltering Guardian Society, who told him to go and get the trunk. Mrs. Isaacs, the plaintiff, after her arrest, obtained bail, and was released at nine o’clock that evening. She was arraigned the following morning, before Police Justice Simms, and duly and promptly discharged. This action is brought to recover damages sustained by her both for the assault and for false imprisonment, the complaint setting forth two several causes of action therefor.

Whether the plaintiff was a boarding house keeper, and had a license to keep the same, or has a right to retain the trunk in dispute, in view of the facts in this case, is entirely immaterial. It is certain and apparent that there was a dispute in regard to the possession and right of possession of this trunk between the plaintiff, on one side, and Minnie Eaphael and the defendant, on the other; that the plaintiff held the trunk, and claimed a right to it, and refused voluntarily to surrender it.. This was in the apartments of the plaintiff, and the defendant was there without legal process. At this juncture the defendant was no better, greater, nor more powerful than any other citizen, and could not determine the rights of these disputants, nor assist one against the other. There being at this time no breach of the peace, but simply the question of the possession of the trunk, and he there without warrant' or legal process, the plaintiff had a right to protect and defend her property, or the possession of any property to which she claimed a right. Any assault or act of violence committed by the defendant on these premises in taking the trunk, as above set forth, was at his peril, and for which he is liable in damages. His duty was .to advise and require Minnie Eaphael tp procute either a summons or warrant from a criminal court, or to resort to one of the many remedies provided by law. Then the rights of all concerned would have been finally determined and settled. He saw fit, however, to be judge and executioner, and must take the consequences.

The question of probable cause in this action for false imprisonment was properly left to the jury.

The trial justice was not bound to charge every proposition of law requested, even if correct, unless it was pertinent to the issues, and had not been covered by his previous charge. We think his charge was clear, proper, able, and correct, and, if' anything, very favorable to the defendant.

The jury having found against the defendant on the facts, which were disputed and strongly contested, we cannot disturb the verdict; and, finding no errors, this judgment must be affirmed, with costs. All concur.