APPEAL from so much of an order of the Supreme Court at Special Term (GOLD, J.), entered April 7, 1954, in New York County, as granted a motion by plaintiff for an order striking out the separate defense to the first cause of action, contained in the amended answer of defendant-appellant.
Julius S. Christensen of counsel (Robert Schwebel, attorney), for appellant.
Joseph T. Keller of counsel (Hendler & Keller, attorneys), for respondent.
The question presented is the sufficiency of the corporate defendant's separate and complete defense. A second partial defense in mitigation of damages is also pleaded, which is not attacked.
The action is one for false imprisonment. Plaintiff's complaint alleges that while a passenger on corporate defendant's train, he was arrested and removed from the train at a town in West Virginia upon the direction of defendant's conductor and a private detective in the defendant's employ, and charged with
being intoxicated in a public place. He asserts his innocence of the offense and the dismissal of the charge by the Justice before whom he was arraigned.
The defense under consideration pleads that defendant believed and had just cause to believe that plaintiff was guilty of the offense, and that it was actuated by no malice. The defense then goes on to describe plaintiff's actions, stating that plaintiff, while on the train, had in his possession a bottle of whiskey, of which he consumed portions in the presence of others; that there was an odor of whiskey about; that the plaintiff was grossly intoxicated, and, in the presence of the arresting employees, acted in a loud and boisterous manner, used abusive language, and became noisy, riotous and disorderly; that on complaint of passengers defendant's employees apprehended plaintiff or caused him to be apprehended; and that all of said acts of defendant were in good faith, without malice, and actually believing that plaintiff was guilty of the offense charged.
Thus it will be seen that defendant has alleged that plaintiff was actually intoxicated in a public place and in the presence of those making the arrest. These facts, however, are made part of a plea of lack of malice and the existence of probable cause.
The action being for false imprisonment, malice is not an essential element of plaintiff's cause of action. A defense of justification would be one asserting the legality of the arrest. If the arrest had occurred in New York, its validity would depend on statute. The offense being a misdemeanor, an arrest without a warrant would depend on the actual commission of the offense in the presence of those making the arrest. This would be so whether the arrest was made by a peace officer or a private citizen. (Code Crim. Pro., § § 177, 183.) The existence of probable cause, therefore, would have no relevancy in a case like the present. ( McLoughlin v. New York Edison Co., 252 N.Y. 202; Snead v. Bonnoil, 166 N.Y. 325; Johnston v. Bruckheimer, 133 A.D. 649; Sanders v. Rolnick, 188 Misc. 627, affd. 272 A.D. 803.) We are not dealing with an arrest for a felony in New York by a peace officer where, under the statute, the existence of reasonable cause to believe that the person arrested was the one guilty of a felony, which, in fact, had been committed, might be material (Code Crim. Pro., § 177).
We do not have any plea here as to the law of West Virginia with respect to the right to make an arrest. The rule in that State as to the insufficiency of a plea of lack of malice as a defense ...