Tyson v. Joseph H. Bauland Co.

• Decision Date: 20 November 1906
• Citation: 186 N.Y. 397,79 N.E. 3
• Parties: TYSON v. JOSEPH H. BAULAND CO.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 397

79 N.E. 3

TYSON

v.JOSEPH H. BAULAND CO.

Court of Appeals of New York.

Nov. 20, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Eliza Tyson against the Joseph H. Bauland Company. From a judgment of the Appellate Division (95 N. Y. S. 1164), affirming a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial granted.

See 82 N. Y. Supp. 955.

John L. Wilkie, for appellant.

I. R. Oeland, for respondent.

CULLEN, C. J.

This action was brought against the appellant and a special police officer, Thomas O'Reilly, for damages for false imprisonment. The appellant conducted a large department store or shop in the city of Brooklyn. In August, 1898, a Mrs. Margaret Gillin, a customer at the store, while examining goods exposed for sale, left her satchel containing the sum of $25 in money with other articles on a counter or table in the shop. While her attention was diverted from her satchel it was carried off. After stating her loss she was told by a clerk of appellant to go to the entrance of the store and to watch there for any one taking the satchel out. This she did, and observed the plaintiff with the satchel apparently seeking to leave the store. She demanded the satchel, which was surrendered to her, opened it and found her money was gone. She called the attention of a floorwalker of the defendant to the fact, and he brought the defendant O'Reilly, a special policeman, to the scene. Mrs. Gillin told the policeman of her loss, and upon such complaint being made, according to the plaintiff's testimony, the following colloquy took place between her and the police officer: ‘He came running over very excitedly and grabbed me by my left arm, and asked me if I had that satchel, and I said, ‘Yes, sir, I had the satchel.’ And he said, ‘Well, where is the money?’ I said, ‘Officer, I know nothing of the money whatever. A lady on the balcony asked me if I would be kind enough to hand this satchel to this woman.’ And he said, ‘Oh, come off, come off, who was the other woman?’ I said, ‘Officer, I never saw her face before, as God is my judge.’ ‘Well,’ he said, ‘well, tell me who she is, and where the money is, and I will let you go.’ And I said, ‘Officer, don't you dare insult me like this. You investigate this case and you will find I am telling the truth. I am a respectable married woman and the mother of children and would not be guilty of a thing like this.’ He said, ‘Well, then, you have to go to the station house; step outside.’ I said I was a respectable married woman and lived at 1854a Pacific street. He wouldn't listen to me. He shut me up. I did not tell him my name when I was speaking to him. He wouldn't listen.' Thereupon the plaintiff was arrested, taken to the station house, detained to next day, when, on examination before the magistrate, she was committed to await the action of the grand jury. No bill against her was found by the grand jury. Thereafter this action was instituted. The case was submitted to the jury, which found a verdict for the plaintiff, and the judgment on that verdict has been unanimously affirmed by the Appellate Division, though it allowed an appeal to this court.

Since the affirmance of the Appellate Division was unanimous, we are precluded from reviewing the motion for a nonsuit made at the close of the case, and we find no exception in the record sufficient to raise the question whether, on the state of facts as testified to by the plaintiff herself, there was not reasonable cause for believing the plaintiff to have committed the felony which appears on the trial concededly to have been committed. Though the plaintiff was, in fact, innocent, still, if the circumstance was such as would justify a careful and prudent person, action circumspectly, in believing that the plaintiff was guilty of the offense, there was reasonable cause and the arrest was justified. Code Cr. Proc. § 177, subd. 3. The complaint in this action appears to have been framed in the double aspect of an action for false imprisonment and malicious prosecution charged in a single count. On a previous appeal from a judgment recovered by the plaintiff the learned Appellate Division held that ‘the proof wholly failed to establish want of probable cause. The possession of the stolen property by the respondent, notwithstanding her explanation, being sufficient to support a conviction, it cannot be said that it was insufficient to warrant a prosecution. So far, therefore, as the verdict may have been based on the claim of malicious prosecution, it must be regarded as without warrant of law, and the judgment must be reversed, if for no other reason than because it may be founded on this unproven claim.’ Tyson v. Bauland Co., 68 App. Div. 310,74 N. Y. Supp. 59. With this view we are inclined to concur, but we are at a loss to perceive why it was not equally fatal to the action for false imprisonment; for the legality of the arrest and the right to prosecute depended on exactly the same thing, to wit, the existence of reasonable or probable cause, and that, where the facts are conceded, is a question by law. But, as already said, we do not find any exception cognizable in this court to fairly raise the question.

This brings us to the further question of the liability of the appellant for the arrest by O'Reilly. He was appointed by the police board a special patrolman under the provisions of section 308 of the Greater New York charter (Laws 8197, p. 109, c. 378), which authorizes the appointment of such officers to do special duty at any place in the city of New York upon the persons or corporations by whom the application is made paying in advance such patrolman's salary, and as such the officers are ‘subject to the orders of the chief of police, and shall obey the rules and regulations of the police department, and conform to its general discipline, and such special regulations as...