Phillipson v. Ninno

Judgment and order affirmed, with costs. Held, in view of the finding of malice [968] and want of probable cause, no prejudicial error survives in refusing to dismiss the cause of action for false imprisonment. Damages may be awarded for imprisonment where a case of malicious prosecution is made out. (Sheldon v. Carpenter, 4 N. Y. 579.) All concur, except Lambert and Hubbs, JJ., who dissent upon the ground that it was error for the trial judge to deny the defendant’s motion for a nonsuit as to the first cause of action, for false imprisonment, especially in view of the fact that the jury was instructed that it might award exemplary damages on each cause of action. (Marks v. Townsend, 97 N. Y. 590; Swart v. Rickard, 148 id. 264.)