2. MALICIOUS PROSECUTION 35(1)—FAVORABLE TERMINATION OF PROSECUTION.

To give plaintiff a cause of action for malicious prosecution, the prosecution on which the action is based must have terminated favorably to plaintiff.

3. PLEADING 8(2)—CONCLUSIONS-MALICIOUS PROSECUTION.

A complaint for malicious prosecution, by alleging want of jurisdiction of the magistrate and court which tried plaintiff, the insufficiency of the informations against him, and that the information on which he was tried was not the same in effect as the one on which he was held, pleaded mere conclusions without the allegation of requisite supporting facts. 4. MALICIOUS PROSECUTION 51-PLEADING TERMINATION.

In his complaint for malicious prosecution, plaintiff must allege what is tantamount to termination of the malicious prosecution favorably to him. 5. FALSE IMPRISONMENT 7(4)—ARREST AND DETENTION WITHOUT PROCESS. Where defendants caused the arrest and imprisonment of plaintiff without warrant or other legal process, when he was guilty of no crime, and detained him against his will for upwards of two hours without delivering him to a peace officer or taking him before a magistrate, when they took him to the police station and there caused him to be imprisoned over night without warrant or other legal process, defendants were liable to plaintiff as for a false arrest and imprisonment.

6. ARREST 62-LACK OF WARRANT-STATUTE.

Under Code Cr. Proc. § 183, arrest of plaintiff by defendants for misdemeanor without warrant could only be justified if the misdemeanor was committed in their presence.

7. FALSE IMPRISONMENT 22-ARREST WITHOUT WARRANT FOR MISDEMEANOR -COMMISSION IN PRESENCE OF DEFENDANTS-BURDEN OF PROOF.

In an action for false arrest and imprisonment, the burden is on defendants to show that the misdemeanor for which they arrested plaintiff without warrant was committed in their presence.

8. FALSE IMPRISONMENT 39-ARREST WITHOUT WARRANT-UNNECESSARY DELAY IN TAKING BEFORE MAGISTRATE-STATUTE.

Where defendants, having lawfully arrested plaintiff for misdemeanor, detained him against his will for upwards of two hours without delivering him to a peace officer or taking him before a magistrate, in his action for false arrest and imprisonment it cannot be said, as a matter of law, that there was no unnecessary delay in taking him before a magistrate or delivering to a peace officer, as required by Code Cr. Proc. § 185.

9. FALSE IMPRISONMENT 8-DELAY IN TAKING PRISONER BEFORE MAGISTRATE OR DELIVERING TO PEACE OFFICER-ILLEGALITY OF ARREST.

Where defendants, who lawfully arrested plaintiff without warrant for misdemeanor committed in their presence, delayed unnecessarily in taking him before a magistrate or delivering him to a peace officer, as required by Code Cr. Proc. § 185, the arrest became unlawful ab initio, and continued so until plaintiff was lawfully held under warrant of commitment, whether guilty or not.

Appeal from Special Term, New York County.

Action by Stafford Hendrix against the Manhattan Beach Development Company and Chauncey Marshall, Jr. From judgment entered upon an order sustaining a demurrer to the complaint for insufficiency and dismissing it on defendant's motion on the pleadings, plaintiff appeals. Judgment and order reversed, and motion for judgment on the pleadings denied, with leave to defendants to withdraw the demurrer and move or plead over.

Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, SMITH, and PAGE, JJ.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Goldman, Heide & Unger, of New York City (William F. Unger, of New York City, of counsel), for appellant.

Cullen & Dykman, of Brooklyn (Arthur E. Goddard, of Brooklyn, of counsel), for respondents.

LAUGHLIN, J. The provisions of the Code of Civil Procedure which require that the complaint shall contain a plain and concise statement of the facts constituting each cause of action without unnecessary repetition, and that where the complaint sets forth two or more causes of action the statements of the facts constituting each must be separately stated and numbered (Code Civ. Proc. §§ 481, 483), seem to have been disregarded in drafting the complaint. It contains two counts to recover the same amount of damages, and in each the same facts are alleged and no others, with the exception that in the second count it is alleged that the bath ticket (which it is alleged in both counts defendants, in an information filed in the Magistrate's Court upon which plaintiff was held for the Court of Special Sessions and subsequently tried, charged plaintiff, as its agent to sell bath tickets, with having sold on a day after the date for using it had expired and when it was valueless and worthless, owing to the fact that it had been previously sold by defendants and was no longer owned by them) was never thereafter used by any one. So far as appears by the allegations in either count, the plaintiff was neither arrested nor held nor tried on the charge, or upon any issue involving the charge, that the ticket so sold was used by any one. Therefore this allegation in the second count added nothing of materiality to the allegations of the first count, and both counts are in legal effect the same.

The defendants demurred jointly, not to the counts separately, but to the entire amended complaint, on the ground that it appears upon the face thereof that it does not state facts sufficient to constitute a cause of action.

The complaint is most indefinite, but it is claimed and may be gleaned therefrom that the pleader intended to charge causes of action for false arrest and imprisonment and for assault and for malicious prosecution. As the case is presented, however, we are concerned only with the question as to whether the plaintiff has alleged any cause of action

It is alleged that the defendant company was a domestic corporation engaged in operating a bathing pavilion at Brighton Beach, in the borough of Brooklyn, New York; that it employed plaintiff to sell tickets which entitled the holder to a bath; that by a printed notice on the tickets they were good only for the day on which they were purchased; that on the evening of the 8th of September, 1912, defendants without any warrant or legal process wrongfully, unlawfully, and without reasonable or probable cause, maliciously imprisoned the plaintiff in a pen or cage at or near the bathing pavilion for about two hours, and abused, insulted, humiliated, and assaulted him while he was so imprisoned; that, at the expiration of said imprisonment, defendants without any warrant or legal process forced plaintiff against

his will into an automobile owned by defendant Marshall and carried him as a prisoner through the public streets to the Sheepshead Bay police station, and there publicly and unlawfully assaulted and searched him and publicly humiliated and disgraced him, and without warrant or legal process kept him as a prisoner in a cell in said police station over night without food; and next morning, likewise without any warrant or legal process, continued his imprisonment by taking him through the public streets to the Magistrate's Court at Coney Island, without having down to that time filed any charge against him; that defendants then and there knowingly, wrongfully, and maliciously caused a false charge to be made against the plaintiff, which was vitally defective and did not state the commission of any crime, and was therefore void and of no effect and conferred upon the Magistrate's Court no jurisdiction; that no testimony was taken before the Magistrate's Court, but the court, acting arbitrarily and without jurisdiction and wholly upon an invalid and defective information which defendants presented, held plaintiff to answer before the Court of Special Sessions; that in said information defendants charged the plaintiff with having sold to one of the patrons of the bath a ticket bearing the stamp, "Good only on date purchased," which was an earlier date than that on which he sold it; that the information did not state a crime, for the reason that the ticket was worthless and of no effect and had ceased to be the property of the defendants; that plaintiff was innocent of the charge and had not committed any of the acts charged, as defendants well knew; that thereafter, at the instigation of the defendants, plaintiff was brought up for trial before the Court of Special Sessions; that the information which was presented to the Court of Special Sessions differed in "certain essential respects from the information which had been presented to the magistrate" and "stated a different charge than that upon which the plaintiff was held for the Court of Special Sessions and was itself invalid"; that as a result of the trial before the Court of Special Sessions "an invalid finding of guilty was entered against the plaintiff, and he was remanded and imprisoned without valid warrant or legal process and held without bail for six days, and then discharged without judgment"; that as no judgment was entered against the plaintiff it was impossible for him to appeal and he is without remedy except by this action; that in all of the matters alleged defendants "acted maliciously and willfully and without reasonable or probable cause, well knowing that the plaintiff was not guilty of any crime"; that the ticket which defendants charge the plaintiff with having sold "was valueless and worthless and had previously been sold by them and was no longer owned by them"; that by reason of these acts of the defendants the plaintiff was injured in his good name and credit and suffered in body and mind by reason of the disgrace attendant thereon, and was subjected to expenses and disbursements and counsel fees aggregating $6,800, and has sustained damages in the premises in the sum of $25,000.

[1] These allegations constitute an insufficient statement of facts, if it was intended to charge the defendants with liability for an assault made upon the plaintiff after he was arrested and imprisoned at the

bathing house, or while in the automobile or in the police station or on the way from the station to the Magistrate's Court. The mere charge that the defendants assaulted the plaintiff is a conclusion and not a statement of facts sufficient to authorize a recovery for an actionable assault within the provisions of section 481 of the Code of Civil Procedure, which requires a plain and concise statement of the facts constituting the cause of action. Shapiro v. Michelson, 19 Tex. Civ. App. 615, 47 S. W. 746; Connelly v. American Bonding & Trust Co., 113 Ky. 903, 69 S. W. 959; Stivers v. Baker, 87 Ky. 508, 9 S. W. 491; 5 C. J. 650.

[2-4] If it was intended to allege an action for malicious prosecution, the facts stated are insufficient, for it does not appear that the prosecution has terminated favorably to the plaintiff. It is alleged that he was held by the magistrate and found guilty by the Court of Special Sessions, and the fair inference from the facts alleged is that the sentence was suspended. The alleged want of jurisdiction of the magistrate and court which tried the plaintiff, and insufficiency of the informations, are conclusions without the allegation of the requisite facts to support them, as is also the allegation that the information on which he was tried was not the same in effect as the one on which he was held. The plaintiff must allege what is tantamount to termination of the criminal prosecution favorably to him. Robbins v. Robbins, 133 N. Y. 597, 30 N. E. 977; Crescent City Live Stock Co. v. Butchers' Union, 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614; Halberstadt v. New York Life Ins. Co., 194 N. Y. 1, 86 N. E. 801, 21 L. R. A. (N. S.) 293, 16 Ann. Cas. 1102; and Reit v. Meyer, 160 App. Div. 752, 146 N. Y. Supp. 75.

The case of People v. Fabian, 192 N. Y. 443, 85 N. E. 672, 18 L. R. A. (N. S.) 684, 127 Am. St. Rep. 917, 15 Ann. Cas. 100, relied on by plaintiff in support of his contention that a finding of guilty without a judgment passing sentence is not a conviction within the contemplation of the constitutional provisions, is not in point, for it does not hold that a verdict or finding of guilt is a termination of the prosecution in favor of the accused. Counsel for the plaintiff contends that a sufficient cause of action for malicious prosecution is alleged, and he cites in support of his contention Johnson v. Girdwood, 7 Misc. Rep. 651, 28 N. Y. Supp. 151, affirmed on opinion of General Term of the Common Pleas 143 N. Y. 660, 39 N. E. 21; Mesnier v. Denike, 82 App. Div. 404, 81 N. Y. Supp. 818; Nicholson v. Sternberg, 61 App. Div. 51, 70 N. Y. Supp. 212; Beall v. Dadirrian, 62 Misc. Rep. 125, 115 N. Y. Supp. 196, affirmed on opinion of Special Term 133 App. Div. 943, 118 N. Y. Supp. 1094; and Dennis v. Ryan, 65 N. Y. 385, 22 Am. Rep. 635. In Johnson v. Girdwood, supra, it was held that a conviction alleged to have been brought about by duress and conspiracy on the part of the defendants does not bar an action for false arrest or malicious prosecution, and that the judgment of conviction, not being between the same parties, is open to impeachment on those grounds; and the other authorities cited tend to sustain that proposition. In Cuniff v. Beecher, 84 Hun, 137, 32 N. Y. Supp. 1067, it was held that a conviction was a bar to an action either for false imprisonment or malicious prosecution

unless it be shown that it was brought about through fraud or conspiracy participated in by the court as well as the defendants; but doubtless, in view of the decision in Johnson v. Girdwood, it would not be essential to warrant the impeachment of the conviction as a bar to such an action to show that the court participated in the fraud or conspiracy. In this complaint, however, there are no facts alleged to impeach the conviction of the plaintiff in the Court of Special Sessions. It is not alleged that the conviction was brought about by fraud or conspiracy on the part of the defendants or by false testimony given by them or in their behalf or at their instance.

[5-9] The only remaining theory for sustaining the complaint is that a false arrest and imprisonment are sufficiently shown. It is not alleged what charge, or that any charge, was made against the plaintiff when he was first arrested and imprisoned. It is, however, alleged that the defendants caused the arrest and imprisonment of the plaintiff without warrant or other legal process, and that he was guilty of no crime, and, in effect, that they detained him against his will for upwards of two hours without delivering him to a peace officer or taking him before a magistrate; and that they then took him to the police station, and there caused him to be imprisoned over night without warrant or other legal process. I am of opinion that these allegations are sufficient to sustain the action as one for false arrest and imprisonment. On no theory could the crime, if committed by the plaintiff, be more than a misdemeanor, and arrest therefor by the defendants without a warrant could only be justified if the crime was committed in their presence. Code Criminal Procedure, § 183. That is not to be inferred from the allegations of the complaint, and the burden would be on the defendants to show it. Adams v. Schwartz, 137 App. Div. 230, 122 N. Y. Supp. 41; Cousins v. Swords, 14 App. Div. 338, 43 N. Y. Supp. 907, affirmed 162 N. Y. 625, 57 N. E. 1107; Ackroyd v. Ackroyd, 3 Daly, 38; Shaw v. Jayne, 4 How. Prac. 119. But, even if the arrest of the plaintiff was lawful, it cannot be said as matter of law that there was no unnecessary delay in taking him before a magistrate or delivering him to a peace officer, as required by section 185 of the Code of Criminal Procedure. If there was such unnecessary delay, then the arrest itself became unlawful on the theory that the defendants were trespassers ab initio and so continued down to the time when the plaintiff was lawfully held under a warrant of commitment, regardless of whether or not the plaintiff was guilty of any crime. Pastor v. Regan, 9 Misc. Rep. 547, 30 N. Y. Supp. 657; Snead v. Bonnoil, 49 App. Div. 330, 63 N. Y. Supp. 553, affirmed 166 N. Y. 325, 59 N. E. 899; Tobin v. Bell, 73 App. Div. 41, 76 N. Y. Supp. 425; Davis v. Carroll, 172 App. Div. 729, 159 N. Y. Supp. 568. See, also, Davern v. Drew, 153 App. Div. 844, 138 N. Y. Supp. 1017, affirmed 214 N. Y. 681, 108 N. E. 1092.

We are of opinion therefore that, without regard to whether or not the plaintiff was found guilty on the charge on which he was arrested, a sufficient cause of action for false arrest and imprisonment is shown. It follows that the judgment and order should be reversed, with costs, and motion for judgment on the pleadings denied, with $10

168 N.Y.S.-21