#### Thomas J. Shea, Resp’t, *v.*The Manhattan Railway Company, App’lt.1

*(New York Common Pleas, General Term,*

*Filed February 3, 1890.)*

1. Trial—Charge.

It is not error necessitating reversal for the court to refuse to charge that *“*the jury are at liberty wholly to reject plaintiff’s testimony so far as it is not corroborated by other evidence.,” where plaintiff has produced corroboration of some sort on the material points and the jury are charged to find for plaintiff if they believed his testimony, but if they believed defendant’s witnesses the result must be different.

■2. False imprisonment—Evidence.

Where plaintiff’s arrest occurred at night and the complaint was made against him in the morning, the record of the proceedings following such complaint is admissible in an action for false imprisonment, as the arrest and prosecution all constitutes one continuous act of imprisonment.

3. Sam:e.

The record of such proceedings is properly proved by the original record of the magistrate.

Appeal from judgment of the general term of the city court of *(New*York, affirming judgment in favor of plaintiff.

Action for false imprisonment.

Plaintiff and Mr. Fuller, a friend, entered a station of defendant -to take an uptown train. After a short time an altercation arose between them and the platform man and the latter caused pladnt*314iff’s arrest Plaintiff was taken to the station house and detained until morning, when complaint was made and examination had and he was discharged. The action was brought for assault, false imprisonment and malicious prosecution, but upon the trial plaintiff elected to proceed for false imprisonment

It was claimed by defendant and there was some evidence to show that plaintiff and Fuller had been drinking.

*Edward S.*Rapallo, and *Henry H. Sedgwick, Jr.,*for app’lt; *William King Hall,*for resp’t

1

 Affirming 27 N. Y. State Rep., 33.

Larremore, Oh. J.

I concur with the general term of the city court in holding that' no error necessitating a reversal was committed by the trial judge in refusing to charge the abstract proposition “ that the jury were at liberty wholly to reject the plaintiff’s testimony, so far as it is not corroborated by other evidence.” Plaintiff’s evidence was corroborated by the testimony of Fuller, on the question of how much he had been drinking. It may be thought that Fuller’s corroboration, under the circumstances, amounted actually to very little, as he confessedly had been drinking more than the plaintiff had. Still there was corroboration on this point for what it was worth, and it was for the jury ' to say how much it was worth. What Fuller said was really corroboration, though defendant argues that it was not, on account of the form in which it was put Plaintiff testifies that he drank only a small bottle of claret with his dinner, and that he did not drink beer or other stimulants in the saloon which he entered with Fuller and a third friend later. Fuller testified that he had been under the impression that plaintiff did take a glass of beer in said saloon, but, after hearing plaintiff’s testimony, he agreed with plaintiff as to the facts. This is equivalent to having one’s memory refreshed on a point on which one was not very certain, and afterwards testifying positively. There was, therefore, corroboration, however weak it may have been intrinsically, to plaintiff’s statement about his condition as to sobriety; and Fuller also corroborates plaintiff substantially in his narrative of the circumstances leading to the fight, and the arrest on the platform.

On the question whether or not the policeman arrested plaintiff at the instigation of defendant’s employees or upon his own responsibility, plaintiff’s version of the affair is corroborated by the record from the police court, which shows that the complaint the next morning before the magistrate was made and signed, not by a policeman, but by defendant’s platform-man.

Upon the material points of the case, plaintiff produced corroboration of some kind, and the request to charge submitted was therefore, in the form in which it was presented, not material. I may add that I do not think there are any substantial merits in this exception, because the judge did instruct the jury in his charge that if they believed plaintiff’s testimony they could find a verdict for him, but that if they believed defendant’s witnesses the result must be different. This was in effect charging what defendant had embodied in his request

Defendant also complains of the admission of the record of the *315proceedings before the magistrate, but, on this point the language of Daniels, J., in *Rown*v. *Christopher & Tenth St. R. R. Co.,*34 Hun, 471, bears very aptly.

“ What was d,one was a continuous act, beginning with the attempt of the driver to remove the passenger and terminating only with his discharge the next morning by the court before which he was taken. * * * To present the case clearly to the jury, the evidence of what occurred after the plaintiff was taken from the car and up to and including the time of his discharge was proper for their consideration. It simply exhibited the development of the events naturally following and arising out of the unlawful act ■of the driver in endeavoring to remove plaintiff from the car.”

If the altercation on the elevated railroad platform had occurred in the morning, instead of at night, so that plaintiff might have been taken before the police justice, and the gateman’s complaint .against him made immediately, the fact that the whole performance constituted but one continuous act would have been more ■clearly apparent. But the legal status and liability are the same whether defendant’s gateman procures the arrest of plaintiff and ■enters a complaint against him on the same day, or is obliged to wait to make such complaint till the opening of court on the following morning.

It all constitutes one continuous act of imprisonment, which the jury have pronounced false imprisonment. The arraignment of plaintiff before the police justice was an inevitable concomitant and sequence of his arrest, and proof of it did not make the cause of action tried in this case trench of malicious prosecution. The proceedings before the magistrate were properly admissible under the declaration for false imprisonment, which plaintiff elected to rely on.

If the record of such proceedings was admissible, it had to be received in its entirety as the official record of an inferior court. Appellant objects strenuously to the form of proof of this record. .Still, in the absence of any statutory provision regulating the admissibility of the records of proceedings before police magistrates, I think we are relegated to the common law rule as to proof of the judgments of courts not of record, which is well stated in Greenleaf on Evidence, Yol. 1, § 513.

“ The judgments of inferior courts are usually proved by producing from the custody the book containing the proceedings. And as the proceedings in these courts are not usually made up in form, the minutes, or examined copies of them, will be admitted, if they are perfect. If they are not entered in books, they may be proved by the officer of the court, or by any other competent person. In either case, resort will be had to the best evidence to establish the tenor of the proceedings; and, therefore, where the course is to record them, which will be presumed until the contrary is shown, the record, or a copy properly authenti•cated, is the only competent evidence.”

In the case at bar the original record of the proceedings was itself produced, and a copy thereafter used by stipulation of •counsel in lieu of retaining the original.

*316In the other exceptions taken by appellant we find nothing calling for remark.

The judgment should be affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.