#### Henry Hyatt, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.

Second Department,

May 15, 1914.

False imprisonment — arrest by employees of railroad company — failure to show that employees acted within scope of authority — charge.

A plaintiff suing a railroad company for false imprisonment does not make out a cause of action where he merely proves that, being lawfully upon the defendant’s train, he was arrested by the telegraph operator of a switch tower, led from the car, conducted to a nearby station and detained there by the telegraph operator and the ticket agent until a constable arrived and arrested him on a warrant sworn out by the ticket agent. This because such proof does not show that the persons malting the arrest were acting under any express or implied authority from the defendant.

Nor does such evidence establish that, moneys which the plaintiff is charged to have stolen belonged to the defendant.

Especially should a nonsuit have been granted where the person making the initial arrest, when called to the stand by the court, testified that he acted outside of any authority vested in him. by the defendant and outside the scope of his employment.

Charge examined, and *held,*to be erroneous.

Appeal by the defendant, The Hew York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Putnam on the 26th day of Hovember, 1913, upon the verdict of a jury for $125, and also from an order entered in said clerk’s office on the 5th day of December, 1913, denying defendant’s motion for a new trial made upon the minutes.

*Jacob Aronson [Frederick L. Wheeler*and *Alex. S. Lyman.*with him on the brief], for the appellant.

*William H. Weeks,*for the respondent.

Rich, J.:

On May 31, 1913, the plaintiff purchased from defendant’s ticket agent at Towners, N. Y., a ticket from that station to White Plains, N. Y., and at about twelve-fifteen o’clock in the afternoon boarded a train for his destination. When the train *368reached Dykeman’s, where it stopped, one of the defendant’s employees, a telegraph operator in the switch tower near that station, entered the car in which plaintiff was seated, told him that he was wanted at the depot, and led him from the car to the station building, where he was detained by the telegraph operator and defendant’s ticket agent at that station for a period of about three-quarters of an hour, when a constable sent from Towners with a warrant sworn out by the defendant’s ticket agent at that station arrested him.

When the plaintiff rested his case, the defendant moved to dismiss the complaint upon the ground, among others, that the plaintiff had not made out a cause of action and had not shown any detention by the defendant or any of its employees or agents whose authority to so act had been established. The motion was denied and the defendant excepted. The defendant then rested, and renewed its motion to dismiss, which was again denied and an exception taken. The court then charged the jury that they must find “that the men who detained the plaintiff were working for and in the employ of the defendant and doing the work authorized by the defendant when they detained him, before the company is liable.”

At the conclusion of the charge the defendant requested the following among other instructions:

*“*That in the absence of other testimony than that of the mere employment as a towerman by the defendant of a man who is said to have detained the plaintiff, the jury cannot assume that the said person had authority to act as he did in behalf of the defendant so as to bind the defendant.” To this request the court replied: “I leave to the jury the question whether this man who did detain the plaintiff was doing it at the request of the defendant or not, upon all the testimony in the case.” Defendant’s counsel excepted to the refusal to charge as requested.

“ That the man who is said to have detained the plaintiff had no right or authority to act for the defendant in matters outside of the scope of his employment,” to which request the court said: “ That is correct. I leave that to the jury to say whether he was acting under the direction of the company in doing what he did.”

*369“ The jury has no right to assume that the man who is said to have detained the plaintiff had any duties or employment for the defendant other than those duties and employments which have been testified to,” to which the court replied: “That is correct, except as the testimony warrants the assumption.” To the refusal to give this instruction the defendant excepted.

The following appears to have taken place at the conclusion of the requests to charge: “ The Court of its own volition asks if the towerman is in court, and if so to have him called as a witness. Defendant’s counsel excepts to the ruling or order of the Court to have the towerman called. The Court of its own volition after hearing the requests to charge made by Counsel for the defendant asks the towerman to be called as a witness. The defendant objects to the calling of the tower-man at the present stage of the case, because the case has already been closed and respectfully excepts to the ruling of the Court.”

The towerman, Scalpino, was thereupon sworn, and, being examined by the court, testified that the ticket agent at Towmers telegraphed him to “get the man on the train, that he had taken $20.00 from him.” That he accordingly took the plaintiff from the train when it reached Dykeman’s, took him into the railroad station and “held him in the office until the detective came along to take charge of him with a warrant.”

On his cross-examination he testified that at the time of this occurrence he was a telegraph operator at the tower; that.his sole duties were to switch trains from one track to another and maintain the signals; that his superior officer was a Mr. Van Tassell, superintendent of the company, and that he took instructions from him and from no one else; that he had no duties pertaining to passengers on trains and that he was not instructed by Van Tassell or any superior officer of his to arrest the plaintiff.

The defendant thereupon moved to dismiss the plaintiff’s complaint upon the additional ground “ that it affirmatively appears that the man who caused the detention and arrest of the plaintiff acted without authority of the defendant and *370beyond the scope of his work and employment and not in a manner to bind the defendant. ” The motion was denied and the defendant excepted.

When'the plaintiff rested there was not a particle of evidence establishing or even warranting the conclusion that either Scalpino or the ticket agents at Towners or Dykeman’s had any authority, express or implied, to arrest the plaintiff; there was no proof that the defendant had any interest in the matter or even owned the money alleged to have been stolen at Towners; the proof was, therefore, insufficient to charge the defendant with responsibility for the arrest of the plaintiff, and it was error to deny the defendant’s motion to dismiss the complaint. *(Allen*v. *London & South Western Ry. Co.,*L. R. 6 Q. B. 65; *Daniel*v. *Atlantic C. L. R. Co.,*136 N. C. 517; *Mayfield*v. *St. Louis, I. M. & S. Ry. Co.,*97 Ark. 24; *Ollet*v. *Railway Co.,*201 Penn. St. 361; *Lezinsky*v. *Metropolitan St. Ry. Co.,*88 Fed. Rep. 437; *Mulligan*v. *N. Y. & R. B. R. Co.,*129 N. Y. 506; *Penny*v. *N. Y. C. & H. R. R. R. Co.,*34 App. Div. 10.)

The testimony of Scalpino established that what he did was outside of any authority vested in him by the defendant and wholly outside of the scope of his employment. If the case presented any doubt as to the defendant’s right to have the complaint dismissed when the original motion was made, the doubt was removed by the testimony of Scalpino, and the exception to the denial of the renewed motion to dismiss presents reversible error.

The plaintiff calls our attention to *Lynch*v. *Metropolitan Elevated R. R. Co.*(90 N. Y. 77) as an authority which he seems to think sustains his contention, but that was a case where a person had purchased a ticket and entered one of defendant’s elevated trains to ride from Forty-second street to its Rector street station, but lost his ticket before reaching his destination and was detained pursuant to a direction of the defendant that no person be permitted to leave station platforms without producing a ticket, while in the case at bar this defendant had made no rule and it is not shown that it had any knowledge of plaintiff’s arrest.

In addition, I think the trial court erred in his rulings upon *371the defendant’s requests to charge. There was no evidence justifying the qualification or modification of the requests as made and the defendant was entitled to have them charged in the language in which they were framed.

The judgment and order must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.