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Burns v. Erben

Ellen Burns, by her guardian, Elisha W. Chester, agt. Chas. Erben and Thos. Frost

Burns v. Erben, 26 How. Pr. 273 (1864)

Court: The Superior Court of New York City · State Trial Courts
Decided: January 15, 1864
Judges: Robertson
Citations: 26 How. Pr. 2731 Rob. 555

Cited by 2

Headnotes

Where a complaint is susceptible of no other interpretation than a charge of illegal arrest, detention and restraint of liberty, the action is one of false imprisonment and not of malicious prosecution. The Metropolitan police act allows the officers of police to arrest persons suspected by them without warranty where there is reason to believe a felony has been committed. Where the plaintiff in an action for false imprisonment has, upon the evidence, recovered nominal damages against a police officer for arresting her on a charge of felony, the court on appeal will not interfere with the judgment.

Summary

This action was brought to recover damages for the alleged malicious arrest of the plaintiff. On the evening of the 6th of July, 1861, a quantity of silver, of the- value of about $200, belonging to the family of Mr. Henry Erben, was stolen from their dwelling house, 46 W. Thirty-eighth street, between the hours of eight and ten o’clock. The defendant, Charles Erben, is the son of Mr. Henry Erben, and at the time mentioned was residing with his father, at No. 46 West Thirty-eighth street. On that evening no stranger, other than Ellen Burns, was known to have been within said house. She came to the house about eight o’clock and left about half-past nine o’clock, about which time the commission of the felony was discovered. The silver was in a sideboard in the basement at the time she entered the house. The testimony showed abundant opportunity for Ellen Burns to have admitted an accomplice, and afforded ground for the suspicion that the felony was committed by the plaintiff, or with her complicity. . The defendant Frost, a member of the Metropolitan police force, attached to the twenty-ninth precinct, after personal investigation, at the dwelling house where the felony was committed, and by direction of his superior officer, arrested the plaintiff. The defendant Erben accompanied the officer, but had no other participation in the arrest.

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Opinion of the Court — Robertson

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By the court, Robertson, J.

The language of the complaint is. susceptible of no other interpretation than a charge of illegal arrest, detention and restraint of liberty. The, action is one of false imprisonment, therefore, and not of malicious prosecution, which is a species of slander or libel, leading to peculiar injury, to wit: arrest by process of law. *277 Undoubtedly in the latter case the plaintiff is to make out the negative, to wit: a want of probable cause, but slight evidence only is sufficient for the purpose. If the facts sworn to by the malicious prosecutor do not furnish prima, facie grounds to infer that a crime has been committed, the magistrate issuing a warrant is guilty of false imprisonment.

The Metropolitan police act allows the officers of police to arrest persons suspected by them, without a warrant, where there is reason to believe a felony has been committed (Laws of 1857, §8). A dangerous power, unless an immediate investigation is to be had by some magistrate. In this case a felony had been committed, and the plaintiff was arrested on the suspicions of a sergeant of police by the defendant Frost, who was a roundsman merely.

I do not find evidence enough to implicate the defendant Erben in the arrest. He merely disclosed what he knew, and only expressed an opinion that there was enough of suspicion against the defendant to have her examined. He did not request or urge any arrest, but left it to the officer at the station house to decide on its propriety. Nor did he make any charge. Such officer appeared to exercise the authority given him by law of arresting persons that he suspected.

The plaintiff has recovered against the officer nominal damages, which need not be interfered with, and the complaint was properly dismissed against the defendant Erben.

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Cited by 2 cases

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Relies on it most ⓘ

Vernes v. Phillips194 N.E. 762 (N.Y. 1935)
Raschid v. News Syndicate Co.239 A.D. 289 (1933)

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Vernes v. Phillips194 N.E. 762 (N.Y. 1935)
Raschid v. News Syndicate Co.239 A.D. 289 (1933)

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