Jacques v. Sears Roebuck & Co.

• Decision Date: 25 June 1971
• Citation: 322 N.Y.S.2d 941,37 A.D.2d 121
• Court: New York Supreme Court — Appellate Division
• Parties: Henry JACQUES, Appellant-Respondent, v. SEARS ROEBUCK & COMPANY, Inc. and Anthony Varisco, Respondents-Appellants.

Page 941

322 N.Y.S.2d 941

37 A.D.2d 121

Henry JACQUES, Appellant-Respondent, v. SEARS ROEBUCK & COMPANY, Inc. and Anthony Varisco,

Respondents-Appellants.

Supreme Court, Appellate Division, Fourth Department.

June 25, 1971.

Michaels & Michaels, Syracuse, for appellant-respondent (Rosemary Pooler, Syracuse, of counsel).

Hancock, Estabrook, Ryan, Shove & Hust, Syracuse, for respondents-appellants (William L. Allen, Jr., Syracuse, of counsel).

Before MARSH, J.P., and GABRIELLI, MOULE, CARDAMONE and HENRY, JJ.

OPINION

HENRY, Justice:

In this action for false arrest and imprisonment defendants pleaded and proved and the jury found that there were reasonable grounds for The law gives a storekeeper this defense to an action for false arrest when he has reasonable grounds to believe that the plaintiff was committing or attempting to commit larceny. The question here is not whether the arrest was lawful or unlawful but is whether plaintiff was arrested and detained in a reasonable manner and detained for not more than a reasonable time.

detaining plaintiff and that the detention was for a reasonable time. 'Section 218 of the General Business Law, Consol.Laws, c. 20, makes reasonableness of arrest available to retail stores and their employees as a defense to civil false arrest suits' (People v. Horman, 22 N.Y.2d 378, 380, 292 N.Y.S.2d 874, 876, 239 N.E.2d 625, 627, cert. den. 393 U.S. 1057, 89 S.Ct. 698, 21 L.Ed.2d 699), and when they 'have reasonable grounds for suspecting a person of having in his possession unpurchased merchandise * * * such person may be detained in a reasonable manner for a reasonable time for the purpose of making an investigation' (Roker v. Gertz Long Island, 34 A.D.2d 680, 310 N.Y.S.2d 536).

Plaintiff selected several items of merchandise in defendant Sears Roebuck & Company's (Sears') self service store. He put some of them in his pocket and did not exhibit them to the store cash register operator. When he left the store without paying for them defendant Varisco, a Sears security guard, who had observed his actions told him that he was under arrest and asked him to surrender the articles that were in his pocket. Plaintiff gave them to Varisco and went with him to Sears security office where he wrote answers on a printed questionnaire disclosing that he had taken merchandise that he had not paid for, that the interview in the security office lasted ten minutes and that the company representative had acted reasonably. Plaintiff was taken from the store by a police officer. He was charged with petit larceny and released on bail. Thereafter the charge against him was dismissed on motion of the District Attorney. There being no allegation of malicious prosecution nor allegation or proof that defendants procured or instigated an unlawful arrest by the police officer, detention of plaintiff by defendants terminated when the police officer took plaintiff into custody. (Francis v. Taft Cleaners and Dyers, Inc., 281 App.Div. 893, 119 N.Y.S.2d 618.)

The record clearly establishes that plaintiff was arrested and detained by defendants in a reasonable manner and for not more than a reasonable time. The Trial Judge correctly charged the jury: 'If you find under the General Business Law this detention was reasonable you cannot award any damages for the time he was taken into custody by Mr. Varisco and Turned over to the police officer,' and submitted questions to the jurors which they were directed to answer when they reported their general verdict. The jurors unanimously answered 'yes' to the Considering the overwhelming evidence in support of the jury's special finding, the Trial Court should have directed the entry of judgment for defendants dismissing the complaint. Upon this appeal from the order of County Court determining the appeal from the City Court judgment we review questions of law and fact (CPLR 5501(c)) and in disposing of the appeal we may reverse, affirm or modify the order and render a final determination (CPLR 5522) 'and on such review (we are) empowered to and should render such judgment as should have been granted by the trial court'. (Humble Oil and Refining Company v. Jaybert Esso Service Station, Inc., 30 A.D.2d 952, 294 N.Y.S.2d 190).

question 'Was Mr. Henry Jacques detained for reasonable time at Sears Roebuck & Co. and were there reasonable grounds to detain him?', but they also announced a general verdict in favor of plaintiff in the amount of $1,600. The answer to the quoted special question was inconsistent with the general verdict. The Trial Court could have directed the entry of judgment for defendants dismissing the complaint in accordance with the answer to the special question or it could have required the jury to consider further its answers and verdict or it could have ordered a new trial. (CPLR 4111(c)) The Trial Court failed to act in accordance with any of the procedures specified in CPLR 4111(c) but instead denied defendants' motion for judgment in accordance with the special finding and erroneously rendered judgment on the general verdict for plaintiff.

The order appealed from should be modified to provide that judgment be entered in favor of defendants dismissing plaintiff's complaint.

Order modified on the law and facts in accordance with the opinion and as so modified affirmed, without costs.

All concur, except CARDAMONE, J., who dissents and votes to reinstate the judgment of Syracuse City Court, in an opinion.

OPINION

CARDAMONE, Justice (dissenting):

I dissent. In his complaint, Jacques alleged that his failure to pay was unintentional. The defendants denied this and to meet the plaintiff's claim of a false arrest alleged in three separate affirmative defenses that the arrest was (1) justified under section 183 of the Code of Criminal Procedure; (2) privileged under section 218 of the General Business Law; and (3) released by plaintiff's execution of a document so providing.

Considering these defenses in the order presented, it is clear, as to the first, that Varisco, as a security officer for Sears, was making a private person arrest which he is permitted to do for an offense committed in his presence (Code of Crim.Proc., § 183(1)). The validity of an arrest by a private person, however, depends on the guilt of the defendant (McLoughlin v. New York Edison Co., 252 N.Y. 202, 205, 169 N.E. 277, 278) and no consideration as to the reasonableness of the arresting person's belief is of any significance. That is, we speak in terms of consequences (see People v. Cassone, 20 A.D.2d 118, 120, 245 N.Y.S.2d 843, 845, affd. 14 N.Y.2d 798, 251 N.Y.S.2d 33, 200 N.E.2d 214, remittitur amended 14 N.Y.2d 942, 252 N.Y.S.2d 335, 200 N.E.2d 873, cert. denied 379 U.S. 892, 85 S.Ct. 167, 13 L.Ed.2d 95). Thus, since the charge of petit larceny against Jacques was dismissed upon the motion of the District Attorney, it follows that defendant's arrest was invalid. In this connection, the Trial Court properly instructed the jury to find for the defendants if they concluded that plaintiff was guilty of the crime of petit larceny. By their verdict, the jury obviously concluded he was not. (See People v. Horman, 22 N.Y.2d 378, 380, 292 N.Y.S.2d 874, 875, 239 N.E.2d 625, 626.)

As to the second defense, section 218 of the General Business Law provides, in substance, that in an action for false arrest brought by any person by reason of having been detained in the immediate vicinity of a retail store, it shall be a defense that the person was detained in a reasonable...