#### Isaac Nebenzahl, Appellant, *against*Edward M. Townsend *et al.,*Respondents.

(Decided June 6th, 1881.)

The proceedings upon a warrant issued under the act of 1831, to abolish imprisonment for debt, &c., were dismissed, and the debtor discharged from arrest thereunder, on the ground that he had been arrested pre*233viously upon substantially the same facts in an action brought against him by the same party. *Held,*that this did not render the warrant void, so as to entitle the debtor to maintain an action for false imprisonment for the arrest under it.

Where a complaint sets forth a cause of action for false imprisonment and another for malicious prosecution, both for the same arrest and imprisonment, *it seems,*that the plaintiff should be required to elect between them at the trial. If however, without so electing, the plaintiff gives no proof of want of probable cause, and evidence offered on the part of the defendant tending to prove probable cause is rejected upon the plaintiff’s objection, the count for malicious prosecution may properly be dismissed.

An action for malicious prosecution cannot be maintained, even after the proceedings alleged to be malicious have been dismissed, so long as an appeal from such dismissal is pending.

Appeal from a judgment of this court entered upon the verdict of a jury, and from orders denying motions for a new trial.

The action was brought to recover damages for the arrest and imprisonment of the plaintiff. A previous action had been brought by the defendants, Edward M. Townsend and Henry C. Yale, against Isaac Hebenzahl, the plaintiff in this action and Montague S. Marks, in which an order of arrest against Hebenzahl and Marks was granted and they were arrested and held to bail. A. judgment was recovered against them in the action, upon which execution was issued against their property; but no execution against the person was issued, and the order of arrest was never vacated, nor were the defendants discharged or their bail exonerated. Subsequently, Townsend and Yale, upon affidavits stating substantially the same facts as those upon which the order of arrest was granted, procured from a justice of the Supreme Court a warrant for the arrest of Hebenzahl and Marks under the act to abolish imprisonment for debt and to punish fraudulent debtors (L. 1831, c. 300, known as the Stilwell Act). Under this warrant Hebenzahl and Marks were arrested, but after taking testimony, they were discharged and the proceedings dismissed, on the ground, as stated in the opinion of Lawrence, J., that as the plaintiffs had elected to proceed under the provisions of the Code relating to arrests, they could not take proceedings under *234the Stilwell Act based upon substantially the same facts as those which were disclosed in the affidavits on which the order of arrest was granted. From the order dismissing their proceedings, Townsend and Yale appealed to the general term of the Supreme Court, which affirmed the order; and from this decision they appealed to the Court of Appeals, by which their appeal was eventually dismissed; but while the appeal was still pending, this action was brought by Nebenzahl against Townsend and Yale to recover damages for his arrest and prosecution under the warrant.

The complaint set forth three alleged causes of action: the first, in the nature of an action for false imprisonment; the second and third, in the nature of actions for malicious prosecution, the third containing, however, no allegation of want of probable cause. At the trial, the defendants moved that the plaintiff be required to elect upon which cause of action he would proceed, which was denied. Motions by the defendants to dismiss the complaint, and to dismiss the first cause of action, were denied ; but their motions to dismiss the second and third causes of action were granted. Upon the first cause of action, the jury found a verdict for the plaintiff. Motions by the defendants and by the plaintiff for a new trial were refused, and judgment in favor of the plaintiff was entered upon the verdict. Both parties appealed from the judgment, and they also respectively appealed from the respective orders denying their motions for a new trial.

*Blumenstiel & Hirsch*and *A. J.*Requier, for plaintiff.

*North, Ward & Wagstaff,*for defendants.

Charles P. Daly, Chief Justice.

The warrant granted under the act to abolish imprisonment for debt, was not absolutely void, because the defendant had been arrested substantially upon the same state of facts in an action previously brought by the plaintiff, in which the defendant had given bail, and in which judgment had been recovered against him and another. It may be a good reason for discharging the war*235rant, as was done in this case, upon the ground that the plaintiff should not be allowed to resort to both remedies; that having elected to pursue one, he should be precluded from resorting to the other, *(People*v. Goodwin, 50 Barb. 564; *People*v. O'Brien, 6 Abb. Pr. N. S. 66; *People*v. Kelly, 1 Abb. N. S. 431). But this does not render the warrant and the proceedings under it void. If granted by the proper officer, upon affidavits establishing any one of the grounds of arrest specified in the statute, it is valid, and is a protection to the officer, and to all acting under it *(Steward*v. *Biddlecum,*2 N. Y. 105; *Rockford, &c. R. R. Co.*v. *Boody,*56 N. Y. 460, 461; *People*v. *Tweed,*63 N. Y. 205; 5 Hun, 392; *Brown*v. *Crowl,*5 Wend. 298 ; *Wright*v. *Ritterman,*4 Rob. 710, 711; *Cooper*v. *Harding,*7 Ad. *&*El. N. S. 939, 940).

The warrant is not void, but can be vacated upon application to the court upon the ground that it is vexatious, being instituted merely to harass and annoy, as has frequently been adjudged in cases where, after a defendant has been sued and arrested, a second suit is brought for the same cause, in which he is arrested; which application to discharge the defendant from the second arrest, is not, however, a matter of right, but rests in the discretion of the court *(Imlay*v. *Ellefsen,*2 East, 453 ; *People*v. *Tweed,*63 N. Y. 205); as there may be cases where it is allowable to do so. Thus, in *Olmion*v. *Delany*(2 Str. 1216), it was, under the circumstances of that case, held that the defendant might be arrested in a second action, before the former action, in which he had been arrested for the same cause, had been discontinued.

The warrant having, in this case, been granted by the proper officer, upon affidavits showing affirmatively a case within the statute, an action for false imprisonment could not be maintained for an arrest under it, the only action that lies where the arrest and imprisonment are by lawful process, being an action for malicious prosecution, which is maintainable if the prosecution was instituted by the one against whom action is brought maliciously, and without probable cause.

The complaint was for false imprisonment and malicious prosecution, which was uniting two causes of action that were *236inconsistent with each other, for, if the arrest was without lawful authority, it was not a case of malicious prosecution *(Bourden*v. *Alloway,*11 Mod. 180); and if under lawful process, there was no false imprisonment, the imprisonment being by lawful authority. Each cause of action is distinct from the other. Thus, forttierly, for false imprisonment, the remedy was trespass, and for a malicious prosecution it was case *(Elsee*v„ *Smith,*2 Chitty, 304). Both cannot exist upon the same state of facts, or, to put it more clearly, if one lies upon the facts, the other does not. The complaint contains a good count for malicious prosecution, averring that defendants caused to be made affidavits, upon which they obtained from Judge Lawrence a warrant for the arrest of the plaintiff, upon which he was arrested and held to bail; which proceeding, prosecution and arrest, it is averred, was instituted by the defendants maliciously and without probable cause; and a count for false imprisonment, which averred that the defendants, wrongfully and by force, caused the plaintiff to be taken into custody, and imprisoned without any right or authority ; and that the imprisonment was *under a warrant*wrongfully and irregularly issued at the instance of the defendants; which count might possibly be sustained, if the warrant, process, or other proceeding, by or under which he was imprisoned, was void, being without authority in law. When the plaintiff had opened the case, the defendant moved that the plaintiff be required to elect under which count or cause of action in the complaint he would proceed, which was denied, and the defendants excepted. As the plaintiff could not maintain an action for false imprisonment, and one also for malicious prosecution, for the same arrest and imprisonment, I think he was bound to elect under which he would proceed; but the point is not material, from what subsequently occurred.

The plaintiff then put in evidence all the proceedings under which he was arrested, in pursuance of the act to abolish imprisonment for debt. He was examined as a witness on his own behalf ; and upon his cross-examination, the defendant put several questions to him, for the purpose of showing that there was probable cause for the granting of the warrant, *237such as asking him if there was anything in the affidavits upon which the warrant was granted, which he thought was not correctly stated, to which the plaintiff objected ; and the judge sustained the objection ; the defendants excepting. As there were counts for malicious prosecution, the defendants had a right to show the existence of probable cause, unless the plaintiff had abandoned or meant to abandon that cause of action and that he had, is inferrable from his objecting to any evidence of the existence of probable cause. To make out such a cause of action, it is incumbent upon the plaintiff *(Lovell*v. *Roberts,*1 Salk. 15) to show that there was a want of probable cause for the warrant, and as the plaintiff had given no evidence on his part, to establish any such cause of action, and objected to the defendants giving any to prove the existence of probable cause, the judge, on the defendants’ motion, after the plaintiff had rested, dismissed the complaint, as to this cause of action, or, as it appears in the case, the second and third causes of action in the complaint, the third cause of action amounting to nothing more than an averment of the granting of the warrant, the arrest of the plaintiff, the entering into by him, of a recognizance, and a decision of Judge Lawrence discharging the plaintiff from the arrest and dismissing the warrant and complaint, and the affirmance of that decision by the general term of the Supreme Court, and by the Court of Appeals; which, containing no averment of the essential ingredient of a want of probable cause, was no averment of any cause of action whatever. To this decision, the plaintiff excepted, and has also brought an appeal to review it; the answer to which appeal has already been stated in part, that plaintiff rested without giving any evidence establishing a want of probable cause, and after a ruling by the court upon his objection, that the defendants had no right to offer any on the subject.

From the plaintiff’s points on this appeal, I infer that he regards the discharge of the arrest and the dismissal of the proceedings by Judge Lawrence upon the ground that the plaintiff had previously been arrested in another action for substantially the same cause, as establishing, as a conclusion of law, the want of probable cause. It is not necessary, however, *238to pass upon this point, there being another reason why the complaint for a malicious prosecution "should have been dismissed, which is, that when the action was brought, the proceedings under which the arrest had been ordered were not terminated, as an appeal was then pending from the decision of the general term of the Supreme Court, affirming the decision of Judge Lawrence, to the Court of Appeals; and until the determination of that appeal, it could not be known whether the plaintiff would be discharged from the proceedings against him or not; for if the decision of the court below were reversed upon appeal, the plaintiff would have to be recommitted. The pendency of such an appeal is in its effect somewhat analogous to a discharge by *nolle prosequi,*in which case it has been adjudged an action for a malicious prosecution will not lie, because new process may issue upon the indictment *(Goddard*v. *Smith,*6 Mod. 261; *Hughes*v. *French,*Willes, 520, note a). No action for a malicious prosecution is maintainable, until the proceeding or suit in which the party has been prosecuted and imprisoned, has been finally terminated by his acquittal and discharge, or by a verdict or judgment in his favor, or where there has been an abandonment of the proceeding or suit by the party that instituted it; thereby establishing conclusively and beyond further question that there was no ground for his arrest; the reason originally given for the rule being, that until the proceeding is finally determined it does not appear that the prosecution or suit in which the party was arrested was unjust ( *Waterer*v. Freeman, Hob. 266 ; and Williams’ note to the case in 1 Am. ed.); and because “it ought to be shown that it was false and hopeless;” Per Parker, Ch. J., in *Parker*v. *Langley*(10 Mod. 209; *Id.*Gilbert’s Cases, 163). It is essential, therefore, to a cause of action, for the plaintiff to aver and prove that the suit or prosecution was determined in his favor *(Hunter*v. *French,*Willes, 517; *Fisher*v. *Bristow,*Doug. 215; *Morgan*v. *Hughes,*2 T. R. 223 ; *Skinner*v. *Gunton,*1 Saund. 229; *Id.*T. Raym. 176; *Arundell*v. Tregono, Yelv. 117; *Beauchamp*v. *Croft,*Dyer, 285a; *Robins*v. *Robins,*1 Salk. 15; *Bird*v. *Line,*Com. 190; *Goddard*v. *Smith,*6 Mod. 262). “ It is,” says *239the court in *Parlker*v. *Langley*(supra), " a proper answer to show that it is pending,” which it certainly is, when there has been an appeal from the judgment, which has not yet been decided ; and it must also be shown that the suit was determined, or the plaintiff acquitted or discharged before the action was brought *(Purcell*v. McNamara, 9 East, 157; *Woolford*v. *Ashley,*2 Camp. 194 ; *Phillips*v. *Shaw,*4 Barn. & Ald. 435; *Stoddart*v. *Palmer,*3 Barn. *&*C. 2).

The case was then left to rest upon the simple count for false imprisonment; and, at the close of the trial, the defendants moved for a dismissal of the complaint, as it then stood, upon the ground that an action for false imprisonment had not been established, the process under which the plaintiff had been arrested, being regular, valid, and the arrest under it, lawful; which was denied; and the defendants excepted.

I think, for the reasons already given, that this motion ought to have been granted ; and that the defendants are entitled to have the judgment reversed, and a new trial ordered, costs to abide event.

J. F. Daly and Beach, JJ., concurred.

Judgment reversed and new trial ordered, with costs to abide event.