Millea v. City of New York

• Decision Date: 30 March 1960
• Citation: 204 N.Y.S.2d 260,25 Misc.2d 369
• Parties: Thomas MILLEA, Plaintiff, v. CITY OF NEW YORK and Robert Shannon, Defendants.
• Court: New York Supreme Court

Page 260

204 N.Y.S.2d 260

25 Misc.2d 369

Thomas MILLEA, Plaintiff, v. CITY OF NEW YORK and Robert Shannon, Defendants.

Supreme Court, Special Term, New York County, Part I.

March 30, 1960.

Dublirer & Haydon, New York City (Robert Tischler, New York City, of counsel), for plaintiff.

Charles H. Tenney, Corp. Counsel, New York City (Jacob Krasnoff, Asst. Corp. Counsel, New York City, of counsel), for defendants.

MATTHEW M. LEVY, Justice.

The defendant Shannon is a police officer on the force of the defendant City of New York. Shannon arrested the plaintiff and charged him in effect with being a 'common gambler', guilty of a misdemeanor, in violation of Section 974 of the Penal Law. The plaintiff was acquitted, and now sues in this action for alleged false arrest and imprisonment. In paragraph 4 of his amended complaint, the plaintiff alleges that 'the arrest and imprisonment of the plaintiff were all accomplished by the defendants * * * without first having procured a warrant pursuant to law, and although no misdemeanor had been attempted or committed in their presence, and none was committed nor attempted by him.' These allegations were denied in the amended answer, and the defendants further plead, as an affirmative defense in justification, that the police officer found in a storeroom at the Hotel New Yorker under the desk blotter of the desk used by the plaintiff one payoff slip, in a wastepaper basket next to the desk one slip of paper bearing two plays of mutuel race horse policy with the amounts wagered, and in the plaintiff's jacket pocket was found another such slip. It is further alleged that the acts of the police officer were performed with reasonable and probable cause in the discharge of his duties as a peace officer.

The plaintiff moves to strike the defense for legal insufficiency (Rule 109, subd. 6 of the Rules of Civil Practice), contending that reasonable and probable cause is not a defense and that there is no allegation that the crime was committed in the presence of the arresting officer. No point is made that the denial in the answer of the allegation in the complaint suffices without the expression of this denial by way of an affirmative defense (compare the decisions in Todd Shipyards Crop. v. Todd Drydock & Repair Corp., 273 App.Div. 952, 78 N.Y.S.2d 68, and Dworski v. Genesee Country Abstract Co., 277 App.Div. 1094, 101 N.Y.S.2d 115; see Prashker, New York Practice, 4 ed., sec. 174, page 263, note 20). And no motion has been made to strike any portion of the defense as inapproprate (Rule 103, Rules of Civil Practice). Accordingly, I shall seek to resolve the issue only on the narrow basis on which the motion is presented--the sufficiency of the defense as a matter of law.

Even though the motion was thus submitted, the parties indulged themselves in the presentation (in their briefs) of an alleged applicable prior determination. It appears that the plaintiff had moved for summary judgment (Rules of Civil Practice, rule 113), which motion was denied. The defendants argue that the court (Loreto, J.) found in their favor upon the opinion that the pleadings indicated that there was a question of fact as to whether a misdemeanor was actually committed in the presence of the officer. On the other hand, the plaintiff argues that the denial of his motion for summary judgment was upon the ground that there was a triable issue with respect to the plaintiff's possession of the policy slips and payoff sheets and as to whether such possession existed within the presence and observation of the arresting officer. Neither party submitted to me either the order or opinion of my learned colleague or the papers upon which his decision was rendered. Since that determination would be binding upon me as the law of the case (Fried v. Lakeland Hide & Leather Co., Inc., 14 Misc.2d 305, 308, 179 N.Y.S.2d 397, 400), I requisitioned the file.

In opposing a motion for summary judgment, a defendant is not limited to the four corners of his pleading (Curry v. Mackenzie, 239 N.Y. 267, 272, 146 N.E. 375, 376; cf. Strauss v. Kende Galleries, Inc., 203 Misc. 941, 943-945, 118 N.Y.S.2d 517, 519-520). I have therefore examined the affidavits--pro and con--on that motion, and I find that they do not add to or detract from the legal substance of the denial or the defense as pleaded. If (as appears to be the case) the issues of fact referred to by the plaintiff were projected in the record and in the opinion of the court denying summary judgment in the plaintiff's favor, they are also projected by the defendants' denial and by the allegations of the defense now attacked, and it was thereunder that the defendants adduced the proofs upon which they relied on the former motion and the plaintiff produced the proofs upon which he relied--all resulting, as the defendants now argue, in the finding of triable issues as to the plaintiff's possession and whether such possession existed within the presence and observation of the arresting officer. In the circumstances, the references in the briefs to the prior motion and decision were not only an inappropriate method of presenting the issues, but, upon the record being examined were found not helpful in any way to a proper disposition of the present motion.

The application before me, then, must be determined upon an analysis of the penal section involved and of the applicability of the general principles of law urged upon me. At this point, let me say that I agree with the plaintiff that reasonable and probable cause in itself does not constitute a complete defense to a cause of action for police false arrest and imprisonment (Code of Criminal Procedure, § 177; Stearns v. Titus, 193 N.Y. 272, 275, 85 N.E. 1077, 1078; Marks v. Baltimore & Ohio Railroad Company, 284 App.Div. 251, 253, 131 N.Y.S.2d 325, 326; Roher v. State of New York, 279 App.Div. 1116, 1117, 112 N.Y.S.2d 603, 605). And I agree, too, with his contention that '[a]bsent a warrant, a police officer may only arrest a defendant charged with a misdemeanor if the crime is committed in his presence' (People of State of New York v. Tedesche, 3 A.D.2d 220, 221, 159 N.Y.S.2d 486, 487; Code of Criminal Procedure, § 177, subd. 1; cf., as to a felony, Stearns v. New York City Transit Authority, Sup., 200 N.Y.S.2d 272). The question remains as to whether, in view of the nature of the crime charged, there is, clearly, no allegation of that fact.

Section 974 of the...