Sanders v. Rolnick

Shientag, J. The plaintiff was arrested by the defendant late in the forenoon of January 10, 1944, taken to the police station where he was fingerprinted, to police headquarters where he was photographed and made to participate in the line-up, and from there to the Magistrate’s Court where he was released on bail of $500 furnished by him late in the afternoon. Subsequently he was arraigned before the Magistrate charged with grand larceny, the stealing of a check for $300, which was later cashed. The Magistrate held him for action of the Grand Jury. After several hearings by the Grand Jury, that body refused to indict and the case against the defendant was dismissed on December 4, 1944. He suffered no loss of wages but incurred special damages in the sum of $200 for counsel and $25, the expense of the bail bond. [629] Four main grounds are urged on the appeal: (1) that the complaint failed to state a cause of action for false arrest and imprisonment and that the court below erroneously ordered the trial to proceed on that theory; (2) that the court erred in denying to the defendant the right to' amend his answer, pursuant to notice, which proposed amendment, among other things, purported to set up as a partial defense in mitigation of damages, lack of malice and the existence of reasonable and probable cause; (3) that the verdict was against the overwhelming weight of the credible evidence, and (4) that the verdict of the jury was excessive. The third ground may be dismissed from consideration with the brief statement that questions of fact and of credibility were involved and that there is no reason why this court should interfere with the finding of the jury. The complaint has at least one virtue — brevity. It alleges as follows: “ That in and during the month of December, 1943, the defendant wrongfully, maliciously and unjustly accused the plaintiff of stealing a check from the defendant, and as a result of such unjust accusation the plaintiff was arrested, prosecuted and acquitted, and because of such wrongful, malicious and unjustified conduct on the part of the defendant the plaintiff was deprived of his liberty, was compelled to incur legal expenses and was otherwise damaged in the sum of ($3,000.) Three Thousand Dollars. ’ ’ The answer simply set up a general denial. No motion of any kind addressed to the complaint was made before the trial. At the opening of the trial'the defendant contended that the complaint was one for malicious prosecution rather than for false arrest. In any event, he moved, pursuant to notice, to amend his answer by setting up as complete and partial defenses, and as a defense in mitigation of. damages, the absence of malice and the existence of reasonable and probable cause. No motion was made to dismiss the complaint but, on the application to amend the answer, the court ruled that the action was one in false arrest and that the proposed defenses were in all respects insufficient in law. Thereupon the case proceeded to trial on the theory of false arrest. It is difficult to. determine from the face of the complaint whether it purports to state an action for malicious prosecution or for false imprisonment. Essential allegations are lacking to sustain either cause of action and the complaint emphasizes the wrongfulness of the prosecution rather than the [630] unlawful arrest itself. Be that as it may, no motion having been made below addressed to the sufficiency of the complaint and the case having been fully tried as one of false arrest and imprisonment, the insufficiency of the- complaint itself does not warrant reversal. Sections 177 and 183 of the Code of Criminal Procedure deal with the right to arrest a person without a warrant. Section 177 provides that a police officer may arrest without a warrant (a) for a crime committed or attempted in his presence; (b) where the person arrested has committed a felony although not in his presence, and (c) where a felony has in fact been committed and the officer has reasonable cause to believe that the crime was committed by the person arrested. Section 183 provides that a private person may arrest without a warrant (a) for a crime committed or attempted in his presence or (b) where the person arrested has committed a felony although' not in the presence of the private citizen making the arrest. Police officers and private citizens are, therefore, on the same footing when an arrest is made, without a warrant, in the case of a misdemeanor. But the police officer is" given greater protection than a private citizen when the arrest is made for a felony (McLoughlin v. New York Edison Co., 252 N. Y. 202; Snead v. Bonnoil, 166 N. Y. 325; Gearity v. Strasbourger, 133 App. Div. 701). Here the arrest was made by the defendant who directed a police officer to take the plaintiff into custody. The defendant did not merely communicate the facts or the grounds of suspicion to the police officer leaving the latter to act on his own judgment and responsibility in making the arrest (Brown v. Chadsey, 39 Barb. 253; Regan v. Morgan, 211 App. Div. 443; Heneberry v. Mahoney, 63 N. Y. S. 2d 862). The question in this case, therefore, was whether the person arrested committed the felony with which he was charged. If he stole the check as claimed, the arrest was lawful and this would be so even if it were made maliciously or vindictively. If the crime was in fact not committed by the person arrested, the private citizen who made the arrest without the warrant would not be relieved from liability no matter how good his intentions were or how great the caution he exercised. Lack of malice and the existence of reasonable and probable cause are neither complete nor partial defenses to an action for false imprisonment against a private person making an arrest without a warrant (McLoughlin v. New York Edison Co., 252 N. Y. 202, supra). That is not [631] altogether true, however, with respect to the damages which may be recovered in such an action. Damages, other than nominal, that are recoverable in certain types of tort actions, of which false imprisonment is one have long been classified as compensatory and punitive in character. Compensatory damages, whether general or special, serve to make good, so far as it is possible to do so in dollars and cents, the harm done by a wrongdoer. Punitive damages, on the other hand, as the name implies, act not by way of compensation but by way of punishment of the wrongdoer and as an example to others. Such damages may be awarded in a proper case only where, and to the extent that, the wrongdoer has acted maliciously, wantonly or with a recklessness that betokens improper motive or vindictiveness. Moreover, even in a case .where punitive damages may be warranted by the facts, it is for the jury in its discretion to say whether such damages will be awarded (Volts v. Blackmar, 64 N. Y. 440, 444; Reid v. Terwilliger, 116 N. Y. 530). It is not necessary specifically to claim punitive damages in the complaint (Korber v. Dime Savings Bank, 134 App. Div. 149). We are not called upon to determine whether facts must be specially alleged in a complaint to lay the foundation for an award of punitive damages or whether such damages flow as an incident to a proper type of action as the facts may be developed upon the trial (cf. 1 Clark on New York Law of Damages, § 55; Bingham v. Gaynor, 135 App. Div. 426; Korber v. Dime Savings Bank, 134 App. Div. 149, supra). Here the allegations of the complaint furnish a sufficient foundation for a claim for punitive damages. Good faith, absence of malice and the existence of reasonable and probable cause may be shown by the defendant in an action of this type, not to defeat the action (for false arrest by a private citizen without a warrant), not to reduce the actual damage sustained, but only in mitigation with respect to punitive damages (Gearity v. Strasbourger, 133 App. Div. 701, 705, supra). The wronged person in any action for false imprisonment is entitled to be compensated for the actual injury he sustained and this irrespective of the motive of the wrongdoer (Jones v. Pickard, 101 Misc. 117; Parke v. Fellman, 145 App. Div. 836; Voltz v. Blackmar, supra, p. 445; Bradner v. Faulkner, 93 N. Y. 515; Wandell v. Edwards, 25 Hun 498). It is' clear that matter tending to disprove compensatory damages claimed, whether they be general or special in character, may be shown by a defendant although not set up in the [632] answer; it suffices that the answer puts in issue the existence of the cause of action asserted (Fleckenstein v. Friedman, 266 N. Y. 19). Where, however, the defendant seeks to show mitigating circumstances bearing upon liability for punitive damages, it is proper, if indeed not required, that such mitigating circumstances be separately set up in the answer (Civ. Prac. Act, §§ 262, 339; Fleckenstein v. Friedman, supra; McClelland v. Climax Hosiery Mills, 252 N. Y. 347, 355; Wandell v. Edwards, supra, p. 500; Willover v. Hill, 72 N. Y. 36; Bradner v. Faulkner, supra). The court, therefore, erroneously refused to allow an amendment of the answer setting up a partial defense in mitigation of damages. This requires reversal for, in consequence of that erroneous ruling, the defendant was deprived of the opportunity of offering in evidence, for the limited purpose indicated, all of the facts and circumstances connected with the transaction leading up to the arrest, tending to explain the motive of the defendant. It is unnecessary, therefore, to pass upon the question as to whether or not the verdict rendered in this case was excessive. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.