Keller v. Butler

• Decision Date: 18 October 1927
• Citation: 158 N.E. 510,246 N.Y. 249
• Parties: KELLER v. BUTLER.
• Court: New York Court of Appeals Court of Appeals

246 N.Y. 249

158 N.E. 510

KELLER

v.BUTLER.

Court of Appeals of New York.

Oct. 18, 1927.

Action by Julius Keller, Jr., against J. Frank Butler, From an order of the Appellate Division of the Supreme Court, 220 App. Div. 212, 221 N. Y. S. 323, reversing as a matter of law an order of Special Term which denied a motion to dismiss the complaint, plaintiff appeals.

Reversed, and motion denied.

Appeal from Supreme Court, Appellate Division, Second department.

Eugene S. Bibb, of New York City, for appellant.

Harold L. Allen of New York City, for respondent.

CRANE, J.

No cause of action, it is said, has been stated in the complaint, which has been dismissed. In effect this means that an action for damages cannot be maintained against one who falsely and maliciously and without probable cause procures the arrest of another as a fugitive from justice until a determination of the criminal proceeding instituted in the foreign state. According to the complaint, the defendant charged the plaintiff in the state of Florida with having committed larceny. Through the action of the defendant, the Governor of Florida made requisition upon the Governor of the state of New York for the extradition of the plaintiff who was in New York. The plaintiff was arrested upon the process of a magistrate issued in New York state under our procedure and brought before the Governor, who determined that the prisoner was not a fugitive and should not be surrendered. Thereupon the plaintiff was discharged from arrest. The plaintiff brings this action against the defendant for falsely and maliciously and without probable cause accusing him of being a fugitive from justice, whereby he was arrested in New York state as a fugitive and imprisoned. By the motion to dismiss the complaint, all these facts are conceded; yet it has been held that the plaintiff has no remedy for this malicious arrest or abuse of process until the charge pending in the Florida courts has been determined in his favor.

[1] We do not take this view of the law. The guilt or innocence of the defendant of the crime committed according to the laws of Florida may be-in this case was-an altogether different matter from the extradition proceedings in the state of New York, which depended entirely upon the identity of the defendant and his flight from Florida, taking New York as his asylum. Unless the plaintiff was in the state of Florida at the time of the commission of the crime, he could not be extradited under the Constitution and laws of the United States. His actual, not his constructive, presence was necessary in the state of Florida to make him a fugitive. Hyatt v. New York ex rel. Corkran, 188 U. S. 691, 23 S. Ct. 456, 47 L. Ed 657;People of State of Illinois ex rel. McNichols v. Pease, 207 U. S. 100, 28 S. Ct. 58, 52 L. Ed. 121. Therefore, it might be that he could be convicted of a crime committed through his instigation, if caught in the state of Florida, although he could not be brought from another state upon any such charge. The extradition laws, as I have said, apply to fugitives-those who flee from the state where the crime has been committed. Therefore, when this plaintiff was arrested in New York state, the question was not one of his guilt or innocence-that could not be inquired into-rather it was the question of his presence in Florida at the time of the commission of the alleged crime, and his flight therefrom. Was he a fugitive? The complaint alleges that the defendant, knowing that the plaintiff was not a fugitive, maliciously caused his arrest under the extradition laws in the state of New York, and that after a hearing the plaintiff was released.

[2] A proceeding was instituted in the state of New York against the plaintiff, recognized by our law, and which resulted in his being put in prison. Article 4, § 2, cl. 2, of the United States Constitution, as supplemented by the Act of 1793 (1 Stat. at Large, 302) and now embodied in sections 5278 and 5279 of the Revised Statutes (18 USCA §§ 662, 663 [U. S. Comp. St. §§ 10126, 10127]), provides for the extradition of fugitives who flee from the state in which their crime has been committed. Before surrendering the prisoner, however, it is the duty of the Governor to determine whether or not the person arrested is a fugitive from the justice of the demanding state. Hogan v. O'Neill, 255 U. S. 52, 56, 41 S. Ct. 222, 65 L. Ed. 497. Our Code of Criminal Procedure specifies the method by which fugitives shall be arrested, brought before the Governor, and surrendered as demanded in the requisition. In section 827 it provides that the Governor may direct that any such fugitive be brought before him, and may for cause, by him deemed proper, revoke any warrant issued by him. It is made the duty of any officer arresting a person on the warrant of a Governor to take the prisoner before a judge of the Supreme Court, or a county judge, who shall inform the prisoner of the nature of the process, and that he may have a writ of habeas corpus to determine his identity. Procuring or inducing another to leave the state without compliance with these provisions is made a felony, indicating the care taken to insure of the identity of the prisoner, and that he is a fugitive from justice.

The complaint alleges that the plaintiff in this case was arrested upon the warrant of a magistrate before whom he was taken, and after some hours of confinement released on bail. This is the procedure outlined in section 828 of the Code of Criminal Procedure. In order to hold a prisoner until there can be a hearing, the magistrate may issue a warrant as a preliminary proceeding to the issuing of a requisition by the Governor of another state. An exemplified copy of an indictment found or other judicial proceeding in the state in which he is charged to have committed the offense may be received as evidence before the magistrate upon which to issue his warrant. The magistrate, upon the arrest of the prisoner, may hold him to await the warrant of the Governor, not to exceed 30 days. He may bail him in the meantime. This is the meaning of the allegations of the complaint in this case. The plaintiff was arrested in extradition proceedings through and by reason of the charge of the defendant pending the issuance of the warrant by the Governor of this state. He was brought before the magistrate and admitted to bail. Thereafter the Governor held his hearing as he was authorized to do (Code Cr. Proc. § 827; People of State of Illinois ex rel. McNichols v. Pease, 207 U. S. 100, 108, 28 S. Ct. 58, 52 L. Ed. 121); and, refusing his warrant, the magistrate subsequently released the bail and discharged the prisoner.

[3] Here was a proceeding in this state instituted by the defendant resulting in the arrest of the plaintiff, his commitment by the magistrate, his subsequent release and discharge on the ground that he could not legally be...