Philips v. Leary

Miller, J.: The action is for false arrest in the county of Hew York, and the defendant, a police officer of the city of Hew York, seeks a change of the place of trial to said county, alleging that he is sued for an act done “ in virtue of his office.” The complaint makes no mention of the fact that the defendant was such officer, and the justification for the arrest pleaded in the answer is that the plaintiff was acting [872] in a suspicious manner. It is not alleged that the defendant had a warrant; that the plaintiff had committed or attemptéd to commit a crime in his presence; that the plaintiff had committed a felony, or that a felony had been committed, and that the defendant had reasonable cause for believing that the plaintiff had committed it (See Code Grim. Proc. § 177); nor is it even alleged that the defendant had reasonable ground to believe that the plaintiff had committed or was about to commit a felony. The appellant contends that a police officer in the city of Hew York has all the powers conferred upon peace officers by statute, and in addition such powers as they possessed at common law before their powers were defined by statute. It may be conceded that at common law for a crime not committed in his presence a constable could justify an arrest without a warrant by showing reasonable ground for believ-. ing that the person arrested either had committed or was about to commit a felony, whereas a private individual had to show that a felony had in fact been committed. (Burns v. Erben, 40 N. Y. 463; Newman, v. N. Y., L. E. & W. R. R. Co., 54 Hun, 335.) But it is not pretended that at common law an officer could justify an arrest merely because he thought the person arrested • was acting -in a suspicious manner. It is unnecessary, therefore, to consider the interesting question presented by the appellant whether police officers in the city of Hew York have greater powers than peace officers in other parts of the State. The only question, then, requiring determination on this appeal is whether a defendant can claim the benefit of subdivision 2 of section 983 of the Code of Civil Procedure, where the act for which he’is sued was confessedly done without any authority whatever. Of course, a defendant need not. establish a defense to claim the benefit of said statute, because one may be a wrongdoer though acting in virtue of his office. (Murphy v. Callan, 69 App. Div. 413.) The defendant may have acted colore officii, but not virPute offieii, for, 'as said by the learned justice at Special Term, “when the, act of the defendant is of such a nature that his office gives him no authority to do it, it cannot be said that the act was done ‘virPute officii’ (Brown v. Smith, 24 Barb. 419).” (See, also, Green v. Rumsey, 2 Wend. 611.) In any view x of the case the place of trial should not be changed upon an answer which does [873] not contain facts sufficient to constitute a defense; the motion was properly denied and the order should be affirmed. Hirschberg, P. J., Hooker and Rich, JJ., concurred; Gaynor, J., concurred in separate memorandum.