Ingo v. Koch, No. 122.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtAUGUSTUS N. HAND, CLARK, and FRANK, Circuit
Citation127 F.2d 667
PartiesINGO v. KOCH et al.
Decision Date15 April 1942
Docket NumberNo. 122.

127 F.2d 667 (1942)

INGO
v.
KOCH et al.

No. 122.

Circuit Court of Appeals, Second Circuit.

April 15, 1942.


127 F.2d 668
COPYRIGHT MATERIAL OMITTED
127 F.2d 669
Elihu D. Sarasohn, of New York City (Isidor Lazarus and Joseph P. Fiori, both of New York City, of counsel), for plaintiff-appellee-appellant

William A. Davidson, of White Plains, N. Y. (Francis J. Morgan, of Yonkers, N. Y., and John A. Krug, of White Plains, N. Y., of counsel), for defendants-appellants-appellees Koch, Casey, Toucher and Bassett, and appellee Mathews.

Arthur H. Ellis, of Mount Vernon, N. Y., for defendant-appellee Schmidt.

Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Long before she was imprisoned and the present action was begun, plaintiff had brought suit for seduction and breach of promise against one Dienst, a police lieutenant of Mount Vernon, a city in Westchester County, New York, in which she had charged among other things, that, to procure his promotion from the position of policeman to police lieutenant, she had given him $1,000 to bribe an unknown official of Mount Vernon. Koch, one of the defendants in the present action, is a resident of Mount Vernon; the others are all officials of Westchester County. Her imprisonment occurred when a new trial of her suit against Dienst was about to commence. In the instant case, there was testimony that Dienst had threatened that, if plaintiff told anyone he had promised to marry her or that she had given him money, he would see that she was put in "a crazy institution."

Plaintiff's arrest and imprisonment was the result of her indictment, for assault in the third degree, in the case of People v. Ingo, on January 28, 1936, by the grand jury of Westchester County. That apparently there were insubstantial grounds for that indictment appears from the following memorandum, dated four months later, prepared and put in the files of that case by the assistant district attorney then in charge of it: "Re: People v. Jennie Ingo. This case is to be transferred1 for the following reasons: That it appears that the complaining witness, Eugene Granata, was the aggressor in this alleged assault. The complaining witness went for the son of the defendant, who is a woman weighing less than 150 pounds, whereas the complaining witness weighs something over 200 pounds, and there are grave doubts as to whether or not the jury would convict in this case from an analysis of all of the surrounding circumstances. Consequently, it would seem in accordance with the dictates of reason and common sense that this office would not be warranted in putting the taxpayers of Westchester County to the expense of a trial of such a character where a jury would be inclined to favor the defendant under the circumstances of the alleged assault." Nevertheless, the proceedings were not then dropped; even in 1940, the district attorney opposed Mrs. Ingo's motion to dismiss, and it was not until 1941 that, on her motion, the court dismissed it "for want of prosecution"; at the trial of the case at bar, the trial judge said that no satisfactory explanation of this conduct had been given.

On the day of plaintiff's indictment, the district attorney issued a bench warrant directed to any peace officer of the State of New York which commanded him to arrest the plaintiff and bring her "before the Supreme Court to answer the indictment," or if the court had adjourned for the term to deliver her into the custody of the Sheriff of Westchester County, or if she require it, to take her before any magistrate in the county to give bail to answer the indictment. The bench warrant was given to the sheriff's office for execution, and on the

127 F.2d 670
next day deputy sheriff Koch went to Police Headquarters in Mount Vernon and had the defendant Emma H. Schmidt, a policewoman connected with the Police Department of the City of Mount Vernon, assigned to go with him. Koch took the plaintiff directly to the Westchester County Jail, accompanied by Miss Schmidt, and there turned her over to the defendant Deputy Warden Bassett, who placed her in a cell

Instead of taking her directly to the jail at Eastview, the deputy sheriff Koch should have taken her before the judge, then sitting in White Plains, in accordance with the terms of the bench warrant. There is testimony that, when the automobile used for her arrest turned from the road leading to White Plains to the road leading to the jail at Eastview, the plaintiff protested.

She testified also that, when she was in the jail, she protested against what she believed to be her wrongful treatment. On the basis that she was creating a disturbance, the defendant Dr. Mathews, who was an interne at Grasslands Hospital, and at the time was making his rounds in the jail, was asked by Warden Toucher to examine her. He did so and issued a certificate that she was "suffering from a paranoid state and is in such a state of health that she requires immediate treatment and should be removed to a hospital for such treatment." This certificate was presented to the County Judge who, on January 29, 1936, made an ex parte order that she be transferred to Grasslands Hospital. Section 508 of the Correction Law, Consol. Laws, c. 43, required that the certificate be signed by the jail physician and the warden, but it was signed solely by Dr. Mathews who had been assigned to the jail clinic during the month of January, 1936, as "Acting Jail Physician," in the absence of the jail physician. The plaintiff was transferred to the hospital, where she remained until February 26, 1936, when she was returned to the jail and bailed out.

There is in evidence a form prepared by the district attorney of an application to be presented to the county judge for plaintiff's removal from the county jail to the Grasslands Hospital, because of unsound mental condition. While this particular form (contemplating examination by two qualified medical examiners) was not used, it is significant that it was dated the day before her arrest.

Although plaintiff may not have proved that any of the defendants were parties to procuring her indictment, or that there was any unlawful conspiracy relating to the indictment, or that it was specifically in order to frustrate her suit against Dienst that any of the defendants had exceeded their authority,2 there was evidence sufficient to justify a jury in believing that, after she had been indicted, the defendants, or some of them, when engaged in arresting her, and subsequently, were actuated by a personal ill-will and malice directed against her because of her suit against the police lieutenant Dienst and her charges, in that suit, of corruption by him and another Mount Vernon official. At one point in the trial, in the case at bar, the judge said, "It is possible that there may have been political activity and matters of that sort." With that background of fact, we turn to the questions before us.

1. As to the defendants Schmidt and Mathews, the verdict in their favor must stand, for the jury was justified, on the evidence adduced, in finding that they were not parties to the wrongful acts of the other defendants.3

127 F.2d 671

2. Were it not for the statute of limitations, the verdict against the other defendants would stand. For, from the moment when there was a departure from the terms of the warrant, the plaintiff's arrest became unlawful (Cf. Snead v. Bonnoil, 49 App.Div. 330, 63 N.Y.S. 553; Hendrix v. Manhattan Beach Development Co., 181 App.Div. 111, 117, 168 N.Y.S. 316), entirely aside from any improper intent or purpose on the part of the defendants.4 A jury, characterized by the experienced trial judge as "very intelligent," has found them liable under instructions which, with but one exception, were proper. The jury having so found, we must take it as a fact. Indeed, these defendants on this appeal virtually admit that their conduct was unlawful, resting their defense primarily on the ground that the action was barred by the New York statute of limitations,5 relating to actions brought against sheriffs, which reads as follows: "The following actions must be commenced within one year after the cause of action has accrued: 1. An action against a sheriff or coroner upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty; except the non-payment of money collected upon an execution." Plaintiff, on the other hand, relied on the two-year statute in false imprisonment cases. Civil Practice Act, § 50.

This action was instituted more than a year and less than two years after the imprisonment. The trial court ruled that the false imprisonment statute governed (i. e., that the short statute was not applicable), and submitted the case to the jury. In so doing, he erred. He should have ruled that that statute barred the action, unless the jury found that the defendants, in the deviation from the commands of the bench warrant, were not acting with a bona fide intention to carry out their official duties. As we reverse for a new trial as to those defendants against whom the jury returned a verdict, it is important that we state the proper interpretation of the one-year statute.

We have in this case an instance of an age-old type of contest — one between a citizen and peace officers who exceed their powers. Protection of the citizen requires that he be not molested by such officers except pursuant to the precise terms of lawful, official authority. On the other hand, enforcement of the state's orders requires that its officers be protected from excessive harassment so that they will not be paralyzed by fear in discharge of their functions; the enactment of such legislation as the short statute — the equivalent of which is found in many jurisdictions — was doubtless inspired by a policy of that sort. But, in so recognizing, we must also observe that the New York legislature could not have intended to...

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28 practice notes
  • Hoffman v. Palmer, No. 261.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 31, 1942
    ...579, 583, 61 S.Ct. 759, 85 L.Ed. 1055; Irwin v. Gavit, 268 U.S. 161, 45 S.Ct. 475, 69 L.Ed. 897; Ingo v. Koch, 2 Cir., April 15, 1942, 127 F.2d 667, note 6; dissenting opinion in Chrestensen v. Valentine, 2 Cir., 122 F. 2d 511, 520, reversed in Valentine v. Chrestensen, 62 S.Ct. 920, 86 L.E......
  • Regan v. Sullivan, No. 526
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 25, 1977
    ...was to protect the sureties on the sheriff's bond, required by N.Y. County Law § 403 and N.Y. Public Officers Law § 11. See Ingo v. Koch, 127 F.2d 667, 672-73 (2d Cir. 1942); Morris v. Van Voast, 19 N.Y. 283 (1838). Prior to 1962, a vacancy in the office of sheriff was, in the absence of an......
  • United Shoe Workers of America, AFL-CIO v. Bedell, AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 23, 1974
    ...178, 11 L.Ed.2d 128 (1963); Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 198-199, 32 S.Ct. 626, 56 L.Ed. 1047 (1912); Ingo v. Koch, 127 F.2d 667, 668 (2d Cir. 1942); Ruth v. Eagle-Picher Co., 225 F.2d 572, 575 (10th Cir. 86 19 U.S.C. 2022(b) (1970); Act of October 21, 1965, Pub.L.No.89......
  • Paschall v. Mayone, No. 77 Civ. 228 (RLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 18, 1978
    ...Civil Practice Act, the predecessor to N.Y.C. P.L.R. § 215(1), and identical in all respects to the present statute. See Ingo v. Koch, 127 F.2d 667 (2d Cir. In Ingo, Judge Frank traced the evolution of the short statute and concluded that it created: "a sort of heaven-purgatory-hell cl......
  • Request a trial to view additional results
28 cases
  • Hoffman v. Palmer, No. 261.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 31, 1942
    ...579, 583, 61 S.Ct. 759, 85 L.Ed. 1055; Irwin v. Gavit, 268 U.S. 161, 45 S.Ct. 475, 69 L.Ed. 897; Ingo v. Koch, 2 Cir., April 15, 1942, 127 F.2d 667, note 6; dissenting opinion in Chrestensen v. Valentine, 2 Cir., 122 F. 2d 511, 520, reversed in Valentine v. Chrestensen, 62 S.Ct. 920, 86 L.E......
  • Regan v. Sullivan, No. 526
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 25, 1977
    ...was to protect the sureties on the sheriff's bond, required by N.Y. County Law § 403 and N.Y. Public Officers Law § 11. See Ingo v. Koch, 127 F.2d 667, 672-73 (2d Cir. 1942); Morris v. Van Voast, 19 N.Y. 283 (1838). Prior to 1962, a vacancy in the office of sheriff was, in the absence of an......
  • United Shoe Workers of America, AFL-CIO v. Bedell, AFL-CIO
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 23, 1974
    ...178, 11 L.Ed.2d 128 (1963); Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 198-199, 32 S.Ct. 626, 56 L.Ed. 1047 (1912); Ingo v. Koch, 127 F.2d 667, 668 (2d Cir. 1942); Ruth v. Eagle-Picher Co., 225 F.2d 572, 575 (10th Cir. 86 19 U.S.C. 2022(b) (1970); Act of October 21, 1965, Pub.L.No.89......
  • Paschall v. Mayone, No. 77 Civ. 228 (RLC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 18, 1978
    ...Civil Practice Act, the predecessor to N.Y.C. P.L.R. § 215(1), and identical in all respects to the present statute. See Ingo v. Koch, 127 F.2d 667 (2d Cir. In Ingo, Judge Frank traced the evolution of the short statute and concluded that it created: "a sort of heaven-purgatory-hell classif......
  • Request a trial to view additional results

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