Van Ingen v. Snyder

Learned, P. J.: The only question on the merits is whether the action was barred by the statute of limitations. An order was granted by the county judge August 5,1876, fining the plaintiff and committing him to jail. Upon that' he was imprisoned. On the 10th day of August, 1876, he gave an appeal bond, and by Adrtue thereof was on that day released. On the 25th day of January, 1877, the General Term reversed the order of the county judge. The present action for false imprisonment was commenced January 9, 1879. The defendant insists that it was barred because not commenced within two ,years from August 10, 1876. (Old Code, § 98; New Code, § 384.) The plaintiff insists that the cause of action did not arise until the reversal of the order January 25, 1877. The case of Brown v. Crowl (5 Wend., 298), cited by plaintiff, holds simply that false imprisonment will not lie against a plaintiff who procures an erroneous judgment in Justices’ Court, for the reason that the judgment is a protection to the party. The case of Chapman v. Deyett (11 Wend., 31), also cited by plaintiff, is substantially to the same effect. These cases, so far as they apply here, would tend to hold that no action whatever would lie against the defendant on the ground that [83] the order of the county judge protected him. But that position is not taken by the defendant on this argument. Undoubtedly after the order had been reversed, it would no longer be a protection, if it had been a protection before. But the question when the defendant became liable to an action (if he was liable at all) did not depend on the subsequent reversal of the order. This is not an action for malicious prosecution. But the right of action (if any there was) began when the actual imprisonment ceased. (Dusenbury v. Keiley, 8 Daly, 537.) The plaintiff insists that after his discharge on appeal he was still at the mercy of his bondsmen. Whether sureties on an appeal from an order have the rights of bail on an arrest upon mesne process, we need not inquire. In fact the plaintiff was not imprisoned by them. ' A point is made as to the sufficiency of the notice of appeal. By a mistake it speaks of a judgment, although none had been entered, but it refers-to the decision denying a new trial and may fairly be construed to read that the defendant appeals from the judgment and the decision denying a new trial. The meaning is apparent. The order denying a new trial should be reversed. Bocees, J., concurred.