#### John J. Reisler, Appellant, *v.*The Interborough Rapid Transit Company, Respondent.

(Supreme Court, Appellate Term, First Department,

January, 1913.)

False imprisonment — arrest without warrant — appeal.

On the trial of an action for false imprisonment, the only question is whether or not plaintiff’s arrest was lawful.

Where plaintiff, at the instigation of a guard in the employ of defendant railway company, was arrested without a warrant by one of its special officers, and in an action for false imprisonment the guard, on cro'ss-examination, testified that plaintiff had called Mm a vile name and assaulted him, and plaintiff and two other witnesses testified that plaintiff used no vile language and did not assault the guard, plaintiff makes out a *prima facie*ease, and the dismissal of the complaint at the close of plaintiff’s ease is reversible error.

Appeal by the plaintiff from a judgment of the City Court of the city of Hew York dismissing the complaint at the close of plaintiff’s case, and from an order denying a motion for a new trial.

Henry J. Goldsmith, for appellant.

James L. Quackenbush, for respondent.

(Ho brief filed by respondent.)

Lehman, J.

Plaintiff sues for damages for an alleged false imprisonment. At the trial, the plaintiff showed that *92he was arrested without a warrant by a special officer in the employ of the defendant at the instigation of a guard in defendant’s employ, and that, at the hearing before the magistrate, the complainant was represented by an attorney in defendant’s employ. The charge was apparently disorderly conduct. The magistrate discharged the plaintiff. Since the complaint in this action is for false imprisonment, the mental attitude of the defendant in causing the arrest is unimportant *;*the sole question is, whether the arrest was lawful. An arrest without a warrant by a private person for a misdemeanor is lawful only where a misdemeanor was actually committed in the presence of that person. In this case the plaintiff showed by his own testimony and the testimony of two witnesses that he used no vile language and did not assault the guard. The guard was interrogated by the plaintiff as to his instigation of the arrest, and then was cross-examined by the defendant as to the justification for the arrest, and, on the cross-examination, testified that the plaintiff had called him a vile name and assaulted him. The plaintiff then rested, and the trial justice thereupon dismissed the complaint. In the record appears a transcript'of the proceedings before the magistrate, which is marked defendant’s exhibit A, although I fail to find in the record where or how this transcript was admitted. This transcript shows that, in the proceedings before the magistrate, the complainant made out a *'prima facie*case of assault, but that the magistrate dismissed the charge on the ground that the arrest was illegal in its inception, because the offense was not committed in the presence of the special officer who made the arrest. Conceding that the magistrate erred in discharging the plaintiff, I fail to see how that fact justified the dismissal of this complaint. The only question before the court in the action for false imprisonment is, whether or not the arrest was lawful. If the arrest was unlawful, in fact, then the plaintiff has established his cause of action, even though the magistrate at the hearing should have required the plaintiff to meet the charge made against him. The plaintiff having made out a *prima facie*ease, the trial justice erred in dismissing the complaint. In dismissing the complaint the trial justice *93stated: “ Under chapter 659, section 75, of the Laws of 1910, on two points of lack of jurisdiction in the magistrate’s court and the failure of proof in the magistrate’s court, I shall have to dismiss the complaint.” Since the argument leading up to this statement is omitted from the record, and the respondent failed to file a brief, we are somewhat at a loss as to the exact meaning of this statement by the court. Certainly an arrest which is in itself illegal cannot he made legal by the failure to arraign the arrested party in the proper court and by failure of proof in the court where he is arraigned.

It follows that the judgment should be reversed,- and a new trial ordered, with costs to appellant to abide the event.

Page, J., concurs; Hotchkiss, J., taking no part.

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