#### Bannert Lewis, Respondent, *against*Bernard Kahn *et al.,*Appellants.

(Decided June 20th, 1889.)

A policeman, called by K. to arrest a workman oí plaintiff, on a charge ■ oí breaking K.’s window, entered plaintiff’s building for that purpose, but failed to find the man; after coming out into the street,he arrested plaintiff and took him to the station house. In an action by plaintiff against K. and the policeman for false imprisonment, plaintiff testified that the arrest was made at K.’s request, and on his stating that he held plaintiff responsiblebut the testimony of K. and the officer was that plaintiff was guilty of noisy, violent, and defiant conduct, in presence of a crowd, after warning by the policeman to desist, and that the charge made against plaintiff at the station house was disorderly conduct. *Held,*that to instruct the jury that there wasno question of disorderly conduct or breach of the peace for their determination, was error, for which a judgment on a verdict against defendants must be reversed as to both.

Appeal from judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

The action was brought to recover damages for false imprisonment of plaintiff on his arrest by defendant Philbin, a police officer, at the request, as plaintiff alleged, of defendant Kahn. It appeared that Kahn had called on Philbin and other officers to arrest a man in plaintiff’s employ, charging the man with breaking a pane of glass in the window of Kahn’s store ; and that the officers went into plaintiff’s store to make the arrest, but did not find the man there. Plaintiff testified that, on the policemen coming out, Kahn told them to take plaintiff, saying that he held plaintiff responsible for his workman breaking the glass, and thereupon he was arrested. There was a crowd in the street, and much shouting by plaintiff and his wife and others. The testimony of defendants is stated in the opinion.

*327At the trial the jury found a verdict against both defendants. A motion by them for a new trial was denied, and judgment for plaintiff- entered on the verdict. From the judgment and the order denying their motion for a new trial defendants appealed.

*Henry R. Beekman, W.*Hartwell, and *Edwin*L. Abbett, for appellant Philbin.

*Charles Steckler,*for appellant Kahn.

*James W.*Smith, for respondent

Larremore, Ch. J.

With regard to the defendant Kahn’s individual relation to the arrest, the case seems to have been properly" presented to the jury. But we think error was committed in that portion of the judge’s charge relating to defendant Philbin, which will render a new trial necessary. Undoubtedly, Philbin was brought to the scene of the arrest by Kahn, and he (Philbin) avers that, although he entered the plaintiff’s premises, he did so with the permission of plaintiff’s wife. Philbin further testifies that, after he came out on the sidewalk again, plaintiff and his wife applied opprobrious epithets to himself and other policemen present.

“I started to drive the crowd away and I turned around and said to Mrs. Lewis, ‘ Don’t make any disturbance around here, go inside;’ Mrs. Lewis laughed, and said,‘You thieves, loafers, and pickpockets,’ addressed to me. Officers Taylor and Smith were there also. I went outside to drive the crowd away, they numbering all of a hundred, and Mr. Lewis was hollering. I asked him the second time not to make any disturbance. Mrs. Lewis said, ‘ This is my property and I will do wiiat I please.’ I told him to go in the third time ; if he did not keep quiet and go inside, I would lock him up on a charge of disorderly conduct. He said ‘ I will dare and defy you.’ ”

The testimony of Kahn corroborates that of the policeman, to the effect that plaintiff was guilty of noisy, violent, and defiant conduct, in the open street, and in presence of a crowd, *328after having been warned by the policeman to desist. It further appears that the charge at the station house against plaintiff was made by Philbin, and was for disorderly conduct.

With this evidence in the case it was error for the trial judge to charge the jury as matter of law that no question of disorderly conduct or breach of the peace could arise for their determination. We regard the rule stated in *Howell*v. *Jackson*(6 Carr. & P. 723) as the correct one. “If the plaintiff made such noise and disturbance as would create alarm and would disquiet the neighborhood and the persons passing along the adjacent street, that would be such a breach of the peace as would not only authorize the landlord to turn the plaintiff out-of the house, but it would also give the landlord a right to have the plaintiff taken into custody if this occurred in the view of the watchman . . . . In a case like the present it should be left to the jury to determine wh’ether the conduct of the arrested party was calculated to disturb and alarm the neighborhood, to attract a crowd, to lead to disorder or riot.” See also *McIntyre*v. *Raduns*(46 Super. Ct. [14 Jones & S.] 123).

The question as to whether a breach of the peace had been committed by plaintiff should have been sent to the jury, and they should further have been charged that, if they found affirmatively on this point, and that the officer had made the arrest on his own responsibility, because of such breach of the peace, a verdict should be given in favor of both defendants.

The views above expressed necessitate an absolute reversal. We cannot, as suggested by plaintiff’s counsel, let the verdict stand solely as against the defendant Kahn.

It is the exclusive province of a jury to say, after they have been-correctly instructed on the law, whether either or both defendants shall be held liable, and in what amount. We should, therefore, not be modifying a judgment, as prescribed, in section 1317 of the Code, but usurping the jury’s original function and ourselves rendering a judgment for $500 against Kahn, after reversing the joint judgment of the jury against Kahn and Philbin. The practical injustice of such proposed *329action might be very great. We cannot say but that a jury, upon a proper statement of the law, will find that a breach of the peace was committed, and that the arrest took place in consequence thereof. In that event both defendants will be exonerated. This question was entirely withheld from the jury upon the trial, and both defendants (Philbin directly, and Kahn indirectly), were substantially interested in having them pass upon it.

The judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.

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

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