#### Townsend Westbrook, Plaintiff, *v.*The New York Sun Association, Defendant.

(Supreme Court, Orange Trial Term,

June, 1900.)

1. Libel — Words not charging a chief of police with assisting a criminal to escape — Eight to arrest without a warrant.

A publication, of and concerning the chief of police of a village, that he was the last man who saw the defaulting cashier of a bank in the village, at its railroad station,, that he remarked to the cashier that he seemed in a great hurry to leave and in a joking manner

*38askecl why he did not wait until a warrant came and save the trouble of following him up, is not libelous as charging the chief of police with assisting a criminal to escape, in violation of section 87 of the Penal Code.

*Semble,*that the words in question contain no implication that the chief of police had violated his duty in not arresting the cashier without a warrant, nor any implication that he had reasonable cause for believing that the cashier had committed-a felony.

That a peace officer could arrest without a warrant only where a crime had been committed in his presence or, in the case of a felony, where he had reasonable cause for believing the person to be arrested to have committed the crime.

*2.*Same -— Pleader bound by the meaning he has attributed to words.

Where the plaintiff has alleged that the words published have a particular libelous meaning, he is bound by the meaning alleged and cannot, on demurrer to the complaint, fall back on some other meaning, even though it may seem truer or more reasonable than the first.

Tbial of the issue of law raised by a demurrer to the complaint as not stating facts sufficient to constitute a cause of action. The action is for damages for an alleged libel, which is as follows:

*“*Lewis E. Goldsmith assistant Cashier of the Port Jervis Rational Bank, who is accused of having stole $54,000.00, of the Bank funds, surrendered to "United States Marshal Henkel at noon to-day having eluded a number of deputy Marshals who have been on his track for over two weeks under direction of United States Marshal Henkel.

“ United States Bank Examiner Bryan of Brooklyn made an examination of the Port Jervis bank books on Nov. 14th and found that Goldsmith was $54,000.00 short, he swore out a warrant December 12th but when United States Marshal Henkel went to Port Jervis to serve it he found that Goldsmith had left the place four days before very suddenly and without having left any intimations as to where he was going. Goldsmith made no secret of his intent to depart and the last man to say good bye to him at the Railroad station was the Chief of Police of Port Jervis who remarked to him that he seemed in a great hurry to leave and in a joking manner asked why he did not wait until the warrant came and save the trouble of following him up. Goldsmith replied that he had urgent business in another part of the Country, which required his immediate presence. The United States Deputy Marshal kept closely on Goldsmith’s heels, but could not close on *39him for he left one place after another just before they got there. It is said Goldsmith visited places in Delaware and New Jersey in addition to this State.”

Wilton Rennet for plaintiff.

Franklin Bartlett for defendant.

Gayxor, J.:

Assuming that the plaintiff was chief of police at the time (which is not alleged, however), there is nothing in the publication implying that he neglected or violated his official duty in not arresting Goldsmith without a warrant. To say nothing of duty, he did not even have the right to arrest Goldsmith without a warrant for a crime of the grade of felony unless he saw him commit the felony, or, if he did not see it, unless a felony had as matter of fact been committed, and he had reasonable cause for believing that Goldsmith had committed it (Code Crim. Pro. § 177). There is nothing in the publication implying that he had reasonable cause for such a belief. And in the case of crimes of the grade of misdemeanors, a policeman or peace officer may arrest without a warrant only when he actually sees the person commit the offense. He cannot do so on his own suspicion, nor on information communicated to him by others. His right to arrest for either a felony or a misdemeanor without a warrant is the same as that of any citizen, no more and no less (Code Crim. Pro. §§ 177, 183); except that in a case of felony, if the felony has actually been committed by some one, the law shields him from an action for false imprisonment for arresting without a warrant providing he had reasonable cause to believe the person arrested to be the one who committed the felony. One not an officer makes such an arrest for felony at his peril if he arrests the wrong person, but an officer is shielded if he have reasonable cause to believe such person to be the felon. This is the only difference in respect of the right of a policeman or peace officer, and of a private citizen, to make an arrest for a felony without a warrant, and in respect of misdemeanors there is no difference. A policeman or peace officer has no more right to arrest a citizen except as prescribed by law than a citizen has to arrest him. The claim that this publication is libelous in that it implies that the plaintiff as a police officer neglected his duty grows out of the pernicious *40notion which originated in the city of New York and seems to have spread over the state, that, the police may arrest at pleasure without a warrant; whereas the citizen has the right to forcibly resist unlawful arrests.

The complaint alleges as the libelous meaning of the publication that it charges the plaintiff with .violating section 87 of the Code of Criminal Procedure (meaning the Penal Code, no doubt) by assisting a criminal to escape. Having alleged that as the libelous meaning, he must stand upon it alone. He cannot now bring up some other'' meaning. By alleging a particular meaning he has excluded all other meanings. The defendant cannot be required to plead to some other meaning, even though it might seem truer or more reasonable than the one the plaintiff bases his action on (Smid v. Bernard, 31 Misc. Rep. 35, and cases there cited). In the recent case of *Morse*v. *Press Pub. Co.*(49 App. Div. 375) the learned justice writing cites from *Odgers*the English rule of practice, that if the plaintiff fails on the meaning he has alleged in his pleading he may on the trial fall back on the natural meaning of the words. But that is the English rule only because under the present system of pleading in England the complaint in such case is deemed to have two counts, one being upon the words in their natural meaning; and when the count alleging the particular meaning fails the plaintiff falls back upon the other count. This was the former way of pleading, and by a rule the present reformed pleading in England is to be deemed to the same effect (Townshend on L. *&*S. sec. 338 and note). But we have no such rule, and its citation here is incongruous and inapplicable. I do not understand the point to have been decided in the case cited. There is, no implication in the present publication of a violation of the said section of the Penal Code. It relates only to facilitating the actual escape of prisoners out of prison, whereas Goldsmith was not in prison.

The demurrer is sustained.