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MacDonnell v. McConville

Supreme Court of New York, Appellate Division

December 29, 1911


Page 50

APPEAL by the defendant, Bernard McConville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of February, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 30th day of January, 1911, denying the defendant's motion for a new trial made upon the minutes.


Harry Crone, for the appellant.

John Thomas Smith, for the respondent.


This action was brought to recover damages for malicious prosecution and false arrest. At the trial the complaint was dismissed, so far as a recovery was sought for malicious prosecution, and submitted to the jury to determine the damages sustained by the plaintiff for the arrest. The plaintiff had a verdict for $2,000, which was reduced to $1,000, and from a judgment entered thereon this appeal is taken, as well as from an order denying a motion for a new trial.

The material facts involved are not disputed and are as follows: On November 30, 1908, between twelve and one o'clock at night, the plaintiff was arrested as he was entering his rooms at 146 West Ninety-fourth street in the city of New York, by the defendant and another, both of whom were members of the police force of such city. The arrest was made under a warrant dated November 20, 1908, issued by an alderman of Wilkesbarre, Penn., directed to a constable in Luzerne county in that State, commanding him to arrest the plaintiff and certain other persons named, and bring them before the officer issuing the warrant to answer the charge of 'unlawfully, wilfully, falsely and maliciously' conspiring to cheat and defraud the Howell & Kings Company out of $1,800.

Page 51

The defendant and his associate also had another warrant issued by the same officer in Pennsylvania, of precisely the same effect, except that it charged the plaintiff and other persons named with conspiring to cheat and defraud the Jeansville Iron Works out of $1,050. When the plaintiff was arrested, the defendant informed him that he and his associate were police officers, gave their names, and then stated 'that we had a warrant for his arrest from the city of Wilkesbarre, and it would be necessary for him to accompany us to headquarters.' Plaintiff was thereupon taken to police headquarters, put in a cell with other prisoners, where he remained until the next morning, when he was measured, photographed and then taken before a magistrate, the defendant having, in the meantime, presented to the clerk of the court the warrants and made an affidavit to the effect that the plaintiff, as he believed, was a fugitive from justice and was wanted in the State of Pennsylvania to answer the charge of having committed the crime of grand larceny, and he asked that the plaintiff be held a reasonable time to the end that the necessary papers might be produced from the authorities of that State. Thereupon plaintiff was committed to the Tombs without bail. A few hours later, however, his counsel procured bail to be fixed, and about three o'clock in the afternoon of that day he was released upon giving such bail. Shortly after his release he went to Wilkesbarre, Penn., saw the district attorney and offered to surrender himself in answer to the charge made against him. The district attorney stated he did not care to proceed against the plaintiff; that he was after a man by the name of Myers; that the plaintiff's arrest was a mistake, and that the New York authorities had never been requested to arrest any one except Myers. Upon motion of the district attorney of Luzerne county, Penn., the proceedings under the warrants issued in that State against the plaintiff were dismissed, that fact communicated to the district attorney of New York county, and the plaintiff was thereupon discharged.

During the course of the trial it was conceded by the defendant's counsel that the charge made against the plaintiff in the State of Pennsylvania was a misdemeanor under the laws of

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that State, and also under the laws of the State of New York, and the court so charged in submitting the case to the jury, to which no exception was taken. This fact having been conceded, and the arrest having been made without a warrant, there was nothing left for the jury, as it seems to me, except a question of damages, and this the court charged, to which no exception was taken.

The crime charged in the warrant, under our statute, is a misdemeanor. (Penal Code, § 168; now Penal Law, § 580.) The concession established, at least for the purposes of the trial, that such crime was only a misdemenor under the laws of Pennsylvania. The defendant was a peace officer, and as such had the right to make an arrest. (Code Crim. Proc. § 168.) But he could only arrest without a warrant for a crime committed, or attempted, in his presence, or when the person arrested had committed a felony, or when a felony had in fact been committed, and there was reasonable cause for believing the person arrested had committed it. (Id. § 177.) And for a misdemeanor an arrest could not be made at night, even with a warrant, unless by direction of the magistrate indorsed upon it. (Id. § 170.) Here no crime had been committed or attempted in the presence of the defendant, and the one charged in the Pennsylvania warrant was, by concession, a misdemeanor. Therefore, the defendant had no authority to arrest the plaintiff. If the plaintiff had committed the crime charged in the warrant, and had fled the jurisdiction of the State of Pennsylvania, then the proper authority had the right to request the Governor of this State to send him back for trial (Code Crim. Proc. § 827), and as a preliminary proceeding to the issuing of a requisition by the Governor of the State of Pennsylvania upon the Governor of this State for the arrest and return of the plaintiff a magistrate could issue a warrant. (Id. § 828.) But in that case the ...

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