Egleston v. Scheibel

Gaynor, J. : Each defendant demurs to the- complaint on the ground {in' so many words) that" four separate causes of action for false imprisonment, one against each defendant, are improperly united. It is claimed that it alleges,the.doing of four different torts, one by each defendant, instead of bnly one tort by them all. Each also demurs that the complaint does not state facts sufficient to constitute a cause of action against him. The complaint is for, a false arrest and imprisonment; or, to be [799] exact, for a false imprisonment, for the imprisonment begins at the arrest. Any physical detention is imprisonment. If the complaint were in due and ancient form, viz., a lean allegation that the defendants imprisoned the plaintiff without warrant or cause, leaving the facts to be proved, it would have become our educated profession better and saved all this trouble; but instead it pleads the facts in extenso, which is always unscientific and unwise. The facts alleged are in substance (1) that the defendant Sclieibel, a policeman, arrested the plaintiff without a warrant in the city-of Yonkers for hawking without a license, whereas he had a license, and took him to-the station house; (2) that the defendant Lent, the sergeant in charge of the station house, locked him up; (3) that the defendant Woodruff, the captain and commander of the police force, was sent for and informed by the plaintiff, of the said facts of his false arrest and imprisonment, but refused to discharge the plaintiff, and detained him all night; and (4) that the defendant Cooley,-.a sergeant of police, took the plaintiff, out of his cell- to .-another room-next morning and “abused” him (how is not stated) and then remanded him to his cell. At the end there is an allegation that the acts of the defendants were “ wilful and concerted,” etc-., but that does not make the action one for a conspiracy, i. e., it is not necessary to make out a conspiracy to maintain.it. It is elementary that every one who participates in the .commission of a tort is liable for it as a principal. If one is committing», a battery, and another come up and join him in the battery, both" are liable for the whole battery. The plaintiff is not obliged-to divide the battery into parts and sue each for a part. It was not necessary that all of the defendants should have been present at the commencement of the false imprisonment, viz., at the arrest. By after-wards joining in the unlawful imprisonment those not present at the Beginning became liable for the whole trespass ab initio. There was one continuous trespass only, and not several - trespasses. If an.officer falsely arrests a person and -starts with him to the station house, every, officer or other person who joins with- him in the tort at-successive. intervals, and places on the way, and the officer in .charge at the station -house who receives, the arrésted person from -them and locks him -up,.- are :all participants - in the same tort, if liable for tort at alb which .has to be determined on the evidence at [800] the trial in, respect of each. Each is not guilty of a new and separate tort. There is only a single tort and not several torts. In such a case the plaintiff is not obliged to bring a separate action against one or each wrongdoer, making him liable 'only from the time and place of his participation ; indeed, it would often or always, be impossible to make such a division. If it be difficult to find precise decisions for the foregoing, it is only because it has seldom if ever been questioned; but there are decisions bearing on the general principle (Schneider v. McLane, 3 Keyes, 568 ; Dyett v. Hyman, 129 N. Y. 351 ; Livingston v. Bishop, 1 Johns. 290 ; Callahan v. Searles, 78 Hun, 238 ; Gold v. Bissell, 1 Wend. 210 ; Green v. Kennedy, 46 Barb. 16 ; 48 N. Y. 653 ; Coats v. Darby, 2 id, 517 ; Judson v. Cook, 11 Barb. 642 ; Bishop v. Ely, 9 Johns. 294 ; Guille v. Swan, 19 id. 381 ; Elder v. Morrison, 10 Wend. 128). If the complaint had .been, simply that the defendants falsely imprisoned the plaintiff, proof of the facts alleged in the complaint would have made out a case against all of the participants. It follows that the complaint alleges only one cause of action against the three defendants Scheibel, Lent and Woodruff. It states none against the defendant Cooley, and his demurrer was properly-sustained on that ground. The demnrrers'also allege a union of a cause of action for assault,against the defendant Cooley with one cause of action against all of the other defendants for conspiracy and malicious prosecution. Ho- such causes of action are alleged. The interlocutory judgment should be reversed, except that it should be affirmed as to the defendant Cooley. Hirschberg, P. J., Woodward and Miller, JJ., concurred; Rich, J., read for affirmance.