Schultz v. Cemetery

• Decision Date: 20 December 1907
• Citation: 83 N.E. 41,190 N.Y. 276
• Parties: SCHULTZ v. GREENWOOD CEMETERY et al.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 276

83 N.E. 41

SCHULTZ

v.GREENWOOD CEMETERY et al.

Court of Appeals of New York.

Dec. 20, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Mary A. Schultz against the Greenwood Cemetery and another. From a judgment of the Appellate Division, unanimously affirming a judgment for plaintiff, defendant the Greenwood Cemetery appeals. Reversed, and new trial granted.

See 46 Misc. Rep. 299,93 N. Y. Supp. 180.

Langdon P. Marvin, for appellant.

James C. Cropsey, for respondent.

O'BRIEN, J.

The judgment from which this appeal is taken was entered upon the verdict of a jury in an action for false imprisonment and malicious prosecution. The case comes here by permission under a unanimous affirmance by the Appellate Division, and consequently the review in this court is restricted to questions of law raised by exceptions taken at the trial.

The complaint contains two causes of action, not stated separately, but commingled and tried in the same way as if but one cause of action was stated. There was no objection raised, however, as to the form of the pleadings; and hence the error, if any, in stating two causes of action in the same complaint without separating them, as required by the Code, has been waived. The causes of action set out in the complaint are governed by different rules. An action against an officer for a false and illegal arrest and detention, known as an ‘action for false imprisonment,’ may be justified by proof that a crime was committed and that he had reasonable ground to suspect that the person arrested was the offender; the arrest being made in good faith and without evil design. The action is in the nature of a trespass for a direct wrong or illegal act, in which the officer and defendant must have personally participated by direct act or indirect procurement. The gist of the action is an unlawful detention. The burden of proof to establish probable cause for the arrest, or reasonable ground for suspicion, is upon the defendant. Burns v. Erben, 40 N. Y. 463. An action for malicious prosecution against an officer or other person may be defended by proof of reasonable and probable cause for the prosecution, and the burden of proving want of probable cause is upon the plaintiff. The plaintiff must allege and prove, not only the want of probable cause for the prosecution, but also that it was inspired by malice. Besson v. Southard, 10 N. Y. 236;Heyne v. Blair, 62 N. Y. 19;Thaule v. Krekeler, 81 N. Y. 428;Anderson v. How, 116 N. Y. 336, 22 N. E. 695;Willard v. Holmes, Booth & Haydens, 142 N. Y. 492, 37 N. E. 480. In either case the action is defended whenever the facts and circumstances stated have been established, though it may turn out that the person arrested or prosecuted was innocent. It is not necessary for the defendant in this class of actions to establish that the person arrested was actually guilty. As this court has stated, innocent parties may sometimes be subjected to inconvenience and mortification; but any more lax rule would be greatly dangerous to the peace of the community and make the escape of criminals frequent and easy. Burns v. Erben, 40 N. Y. 470.

This action was brought against a policeman who made the arrest and instituted the prosecution, and also against the cemetery association where he had been assigned to duty by the police department, and under whose directions it is claimed he acted. By section 647 of the Penal Code any person who, not being the owner thereof and without lawful authority, willfully removes from any grave in a cemetery any flowers, memorials, or other tokens of affection, or other thing connected with them, is guilty of a misdemeanor. It was for a violation of this section that the plaintiff was arrested by the defendant, the police officer on duty in the cemetery. He conducted her to a city magistrate, and there made a charge against her in the form of an affidavit, which covered the offense described in this section of the Code. Upon the affidavit of the policeman the magistrate issued a warrant for her detention. The magistrate informed her of the offense with which she was charged, and that she had the right to the aid of counsel. She then demanded an examination before the magistrate, and was sworn. Her statement was reduced to writing by the official stenographer, and it appears from this statement that the plaintiff then and there stated, not only that she took flowers from a lot in the cemetery in which she had no interest and removed them to her own lot, where her father and perhaps some other relatives were buried, but that she admitted having stated the same thing to the policeman before he made the arrest. The magistrate required her to give bail for the Special Sessions, a court having jurisdiction to try such offenses, and committed her in the meantime until bail was procured. The arrest and hearing before the magistrate were on the 9th and 10th of June, 1898. She was detained in the police station for a few hours and then discharged upon bail. When the case came before the Special Sessions it was dismissed, on the ground that the policeman's affidavit did not state a sufficient charge. In this I think the learned court was in error, since the affidavit contains all the necessary facts to justify the warrant and the arrest, although it was very inartificially drawn; but that question is of no importance here, since the decision of that court, whether right or wrong, ended the prosecution.

This action was commenced on the 19th of December, 1898. The attorneys for both the plaintiff and defendant died subsequentto the joining of issue, and the case was not tried until the 28th of February, 1905, about seven years after the transaction had occurred. There was no motion for a nonsuit at the close of the plaintiff's case, or at the close of the whole case; nor any objection made to the submission of the case to the jury. So we will proceed to examine the questions of law raised by exceptions taken at the trial. There were no exceptions taken to the main charge. The case was submitted on the theory that the arrest and commitment were based on a charge of stealing flowers. Whether the section of the Code deals with a case of larceny or not is not very clear, and, perhaps, not very important here. The learned judge charged the jury that Smith, the officer, was liable for false arrest if the plaintiff was not guilty of removing the flowers. He also left it to them to say whether the policeman was unduly severe by conducting the plaintiff to the station house in a patrol wagon; no reason having been given why he could not have taken a street car. But, as already suggested, there was no exception taken to any part of the main charge, or until the defendant's counsel made the requests which will be presently referred to. At the close of the charge the learned judge asked plaintiff's counsel if he had any requests to present, and the reply was that he had none, whereupon defendant's counsel stated that he had some requests, which he then presented. The requests as read have been very much confused by the collequy between court and counsel on both sides, and it is quite difficult to extract from the discussion, which covers nine pages of the record, just what the jury could understand with respect to the views of the court concerning the requests. In reviewing the exceptions I will refer only to those that are not embarrassed by the discussion and that stand out in bold relief upon the record.

1. Defendant's counsel requested the court to charge that the holding of the accused by the city magistrate after examination into the facts was prima facie evidence of probable cause for the prosecution. The request was refused and an exception taken. This request embodied a correct rule of law, and the defendant was entitled to have the jury instructed accordingly. In a case in the Supreme Court of the United States (Crescent, etc., Co. v. Butchers' Union, 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614) it seems to be held that the decision of the inferior court in favor of the person instituting the prosecution is conclusive proof of probable cause for...