Castro v. De Uriarte

• Decision Date: 25 March 1882
• Parties: CASTRO v. DE URIARTE.
• Court: U.S. District Court — Southern District of New York

12 F. 250

CASTRO v. DE URIARTE.

United States District Court, S.D. New York.

March 25, 1882

Carpenter & Mosher, for plaintiff.

Sidney Webster, for defendant.

BROWN D.J.

This is an action against the defendant, the consul general of Spain to recover damages for an alleged false imprisonment and malicious prosecution in proceedings for the extradition of the plaintiff, under the treaty with Spain of January 5 1877. 19 St.at Large 650. Being a common-law action, the sufficiency of the pleadings upon the demurrer is to be determined according to the New York Code of Procedure. Rev St. Sec. 914.

The amended complaint contains two counts or causes of action separately stated. The first charges that the defendant, on the second of October, 1881, appeared before John A. Osborn a commissioner of the circuit court of the United States for the southern district of New York, and charged the plaintiff with forgery at Havana, Cuba, on or about September 25, 1881, and thereupon procured the commissioner's warrant for the arrest of the plaintiff, upon which he was taken before the commissioner by the active procurement and aid of the defendant, and for several days restrained of his liberty; that at the time of issuing said warrant, and of the arrest of the plaintiff thereunder, the commissioner had in fact no jurisdiction, and the warrant was wholly void for various reasons, stating, among others, that no mandate or preliminary warrant had been obtained from the executive department prior to the proceedings before the commissioner, (In re Kaine, 3 Blatchf. 6-10; In re Thomas, 12 Blatchf. 370; In re Stupp, Id. 501;) and that the warrant itself, for various defects upon its face, was wholly void. The second cause of action alleges the arrest of the plaintiff upon a warrant issued by the same commissioner upon the same day on a similar charge of forgery, under which, by defendant's procurement, he was imprisoned on the second day of October, and restrained of his liberty until October 4, 1881, when, after examination, the plaintiff was held not guilty, and discharged and fully acquitted by the commissioner; and that the said proceedings have been fully ended and determined; that all the acts and doings of the defendant were done falsely and maliciously, and without reasonable and probable cause, and claims as damages $10,000.

The defendant demurs to the second cause of action on the ground that it does not state facts sufficient to constitute a cause of action. He also demurs to the whole complaint on the ground that it appears on the face thereof that the first and second causes of action are improperly united; the first cause of action being for false imprisonment, and the second for malicious prosecution founded on the same alleged acts and supposed wrongs.

Section 488 of the Code of Procedures specifies eight causes for which the defendant may demur to a complaint. Subdivision 7 is 'where causes of action have been improperly united. ' Subdivision 8 is 'where the complaint does not state facts sufficient to constitute a cause of action. ' By section 492 the defendant may demur to the whole complaint, or to one or more separate causes of action stated therein.

Section 484 specifies the causes of action which may be joined in one complaint, and subdivision 2 embraces causes of action 'for personal injuries, except libel,' etc.; and both of the causes of action in the present complaint clearly come under this subdivision. This section also provides, at its close, that 'it must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section, and that they are consistent with each other. ' The last clause, requiring that such causes of action be consistent with each other, was first added in the new Code of 1877.

The demurrer to the second cause of action, on the ground that it did not state facts sufficient to constitute a cause of action, is based upon the contention of the defendant that an action for malicious prosecution cannot be maintained except upon a legal and valid judicial proceeding; that it will not lie upon proceedings void for want of jurisdiction; that the complaint must allege or show such a valid judicial proceeding; and that the second cause of action is in this respect defective in not alleging either in general words that the commissioner had jurisdiction, or in showing any facts sufficient to authorize the issuing of the warrant of arrest.

The demurrer to the whole complaint for the improper joinder of the two causes of action is based upon the contention that an action for false imprisonment and for malicious prosecution cannot both be maintained upon the same identical proceedings and arrest; that the former is based upon a want of jurisdiction, and the latter upon a valid legal proceeding; and that if the statement of the second cause of action be held sufficient in averring or showing jurisdiction in the commissioner who issued the warrant for the arrest, then it is inconsistent with the first cause of action, which is based expressly upon the want of jurisdiction and therefore that the joinder of these two causes of action in one complaint is forbidden by section 484, above referred to.

The remedy at common law for false imprisonment is by an action of trespass for a direct injury to the plaintiff through an unlawful arrest, or a detention without legal authority. The arrest or detention may be by process, under color of legal proceedings, or without process, in the absence of any legal proceedings; or it may be through the irregular issuing or service of process in proceedings otherwise valid. Addison, Torts, Secs. 798, 802, 803, 831; Barker v. Braham, 2 W.Bl. 865, 844; Holley v. Mix, 3 Wend. 350; Pease v. Burt, 3 Day 485.

The common-law remedy for a malicious prosecution, on the other hand, is by an action on the case for an indirect injury through the institution of legal proceedings from malicious motives and without probably cause. To recover in such an action not only must malice and the absence of probable cause be shown but also the termination of the legal proceedings in favor of the accused; none of which are essential to recovery in an action of trespass for false imprisonment. The gist of the action is the malice and want of probable cause; and where these concur and the accused has been acquitted, the law, by means of this remedy, designs to afford him compensation for the injury, expense, annoyance, or disgrace of the groundless proceedings against him. Addison, Torts, Secs. 852, 868.

Where the proceedings are void for want of jurisdiction, trespass for false imprisonment is the ordinary remedy, since no other proof is requisite than the proof of the arrest or detention, and of the illegality of the proceedings. Upon this proof the plaintiff is entitled to compensatory damages. Jay v. Almy, 1 W. & M. 262; Blythe v. Tompkins, 1 Abb.Pr. 468.

And where there is also evidence of malice or bad faith or want of probable cause, exemplary damages may also be given, but not otherwise. Addison, Torts, Sec. 845; Day v. Woodworth, 13 How. 363, 371; Brown v. Chadsey, 39 Barb. 253, 265; Williams v. Garrett, 12 How. (N.Y.) 456.

Where the arrest complained of arose in the course of legal proceedings, and there was no doubt of malice and of the want of probable cause, and no question existed concerning the jurisdiction or legal validity of the proceedings themselves, the pleader was necessarily confined to an action on the case for malicious prosecution; while if a doubt existed with regard to the jurisdiction of the court or magistrate in issuing the warrant of arrest, or the regularity of the proceedings under it, the pleader would ordinarily insert also a count of trespass for false imprisonment, so that, upon trial, if the proceedings were held irregular he would be entitled to recover compensatory damages at all events, and on proof of malice and want of probable cause he could recover full damages for the malicious prosecution, in case the proceedings and the arrest should be held to be regular, and within the jurisdiction of the court or magistrate that issued the warrant.

While thus, from reasons of convenience, the remedy for an arrest without jurisdiction was ordinarily by an action of trespass for false imprisonment, and the remedy was by an action on the case for malicious prosecution, where the arrest was in the course of lawful prosecution, yet these remedies were not confined within these several limitations, nor were they always mutually exclusive of each other. Though the process and proceedings were perfectly valid and regular, yet in case of their abuse or misuse or service at an unlawful time, an action for false imprisonment would still lie. Holley v. Mix, 3 Wend. 350; Doyle v. Russell, 30 Barb. 300, 305; 1 Term, 536-7; Pease v. Burt, 3 Day 485.

By the Revised Statutes of this state, (2 Rev.St.p. 553, Sec. 16,) it is provided:

'Where, by the wrongful act of any person, an injury is produced either to the person, personal property, or rights of another, for which an action of trespass may be brought, an action of trespass on the case may be brought to recover damages for such injury, whether it was wilful or accompanied by force or not; and whether such injury was a direct and immediate consequence from such wrongful act, or whether it was consequential and indirect.' This provision is not affected by the Code of Procedure. The necessary effect of it would seem to be, to authorize an action on the case for a malicious prosecution where malice and the want of probable cause appear, even though the want of jurisdiction in the proceedings for the arrest also expressly appear, since an action

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