#### William Biggs, resp’t, *v.*Martin Schultz *et al.,*appl’ts.

*(Supreme Court General Term, Second Department,*

*Filed December*14th,1886.)

False Impeisonment — Veedict — Motion foe new teial — Excessive DAMAGES.

In an action to recover damages for false imprisonment, a verdict was rendered for the plaintiff, a motion having heen made upon the judge’s minutes for a new trial upon the ground that the damages found by the jury were excessive. On an appeal from the order, the General Term *Seld,*that the cause of action was fully discussed on the trial, and the jury instructed upon the question of damages and that there being no misapprehension or mistake, although the verdict might he larger than they themselves would have made it, yet as it was not so large as to indicate passion or prejudice, they would not set it aside.

Appeal from a judgment entered upon a verdict in an action for false imprisonment.

Tbe eviden ce disclosed tbe following facts:

In July, 1885, tbe defendant, The Knickerbocker Steamboat Company, was the lessee, under a lease from James S. Remsen and Margaret Wainwright, of a dock at Rockaway Beach, at which its steamboats landed their passengers; and bad an exclusive right to tbe whole of said dock, except so much of it as was occupied by a restaurant or chowder-house, situated near tbe centre of tbe dock. Tbe defendant Hoffmire was tbe President of said company, and tbe defendant Shultz was tbe dock-master. Tbe cbowder-bouse was occupied by tbe firm of Bros-nan & Tierney, under a lease from tbe same lessors. Their lease was made several months subsequently to that tbe steamboat company, and, in express terms, *excluded*tbe dock. Prior to the time next mentioned, Brosnan & Tierney sublet to plaintiff tbe privilege ‘of vending crabs at a stand *inside the chowder-house.*Plaintiff subsequently claimed that they also granted bim tbe privilege of selling crabs outside the chowder-house, on the dock, and he accordingly took a position outside between the cbowder-bouse and the landward end of the dock, and directly in the line of passage of the patrons of the Steamboat Company between their boats and tlie beach, and there sold his *57crabs from day to day. Against this invasión of their rights the officers of the Steamboat Company protested. They repeatedly told plaintiff he had no right there, and endeavored to persuade him to respect their rights, and to return to his own place within the chowder-house. Brosnan & Tierney also spoke to him about it and forbade his vending crabs outside of the chowder-house. But he heeded neither. Then they attempted to remove him and his basket of crabs and he resisted. This was about Thursday, the 9th of July. The next day ( Friday), the president of the Steamboat Company, the defendant Hoff-mire, expostulated with him, when he promised that if allowed to sell on the dock what crabs he had there that day, he would then go away He was allowed to remain and close out his stock, but the next day he was there again. Mr. Hoffmire then, acting under mistaken legal advice, instructed the dockmaster to have plaintiff arrested if he came there again and persisted in trespassing on the dock. On Sunday morning, July 12, at about 10.30 o’clock, plaintiff landed on the dock from the Canarsie boat with his basket of crabs. The dockmaster told him he had orders not to allow him to sell any crabs on the dock outside of the chowder-house, and asked him to go to his place inside, and told him if he didn’t he would get into trouble. To this plaintiff replied insolently and defiantly, and said he wouldn’t leave the dock until arrested. The dockmaster pleaded with him not to make trouble, but without avail. Plaintiff declared that he would sell his crabs in spite of Shultz, and that he wanted to be arrested. Mr. Remsen, one of the owners and lessors of the dock, also expostulated with him, and sought to persuade him to leave the dock. Shultz then called Mr. Carpenter, a police officer, and told him he wanted that man off the dock. Carpenter said, “Biggs, you will have to stop selling or I will have to arrest you,” to which Biggs replied, “ That is just what I want.” Carpenter then arrested him, and turned him over to Timothy Jones, a Hempstead constable, who took him to Long Island City and locked him up until the next morning, when he was taken before a magistrate, where Shultz made a charge against him of “malicious trespass.” The magistrate allowed Biggs to go on his own recognizance until the following Friday, when the case was dismissed. Upon these facts the jury gave Biggs a verdict for $1,000. The defendants moved for a new trial upon the minutes on the ground that the verdict was excessive, which motion was denied, and an order denying the same was duly entered. The defendants in due time appealed from the judgment and from the order denying said motion.

*William H.*Graynor, for respondent; Blair, *Snow, & Rudd,*for appellants.

Dykman J.

This is an action for false imprisonment, and *58the jury rendered a verdict for the plaintiff for one thousand dollars. The defendants have appealed and seek a reversal of the judgment, solely because the verdict was excessive.

The cause of action was fully disclosed on the trial and the jury was instructed upon the question of damages, and there was neither misapprehension nor mistake.

Although the verdict may be larger than we would make it, yet we cannot say it was excessive. We cannot say that its size shows, or evinces passion or prejudice, and so we cannot tear it down.

The judgment and order denying the motion for new trial should be affirmed with costs.

*Barnard P. J.*and *Pratt, J.,*concur.