#### Harland *et al. v.*Howard.

*(Supreme Court, General Term, First Department.*

June 6, 1890.)

1. Pleading—Answer.

A complaint alleged as plaintiffs’ cause of action that defendant, as the agent of plaintiffs, sold goods for them, and received therefor certain moneys, which he re*450fused to pay over on demand. The answer admitted the agency, the sale of the goods, and the receipt of moneys, but denied every other allegation in the complaint. *Held,*that a judgment for plaintiffs on the answer was erroneous.

S. Arrest in Civil Action—Pleading.

A complaint which alleges that defendant, as plaintiffs’ agent, sold merchandise and received the proceeds, and refuses to pay over the sum so received as plaintiffs’ agent, will not support an order of arrest, under Code Civil Proc. N. Y. § 549, providing that a defendant may be arrested, in an action to recover money or property, “where it is alleged in the complaint that the money was received, or the property was embezzled or fraudulently misapplied, by * * * a factor, agent, broker, or other person in a fiduciary capacity. ”

8. Same—Service of Order.

A private detective, without a warrant, forcibly seized defendant for the purpose of detaining him until the order of arrest could be served on him by the proper officer. *Held*that, though the order of arrest was subsequently served, while defendant was detained on a charge of assault committed in breaking away from the detective, there was an abuse of process, for which the order should be set aside.

Appeals from special term, New York county.

Action by Robert Harland and others against Thomas Howard. The complaint alleged that “plaintiffs had consigned to the defendant, as such agent, certain goods, wares, and merchandise, to be sold by him for their account, the gross proceeds to be returned to them without deduction,—the expenses of conducting the business having been provided by plaintiffs; that as such agent the defendant sold and disposed of a large quantity of merchandise, and has received the proceeds of such sales; and that he has neglected and refused, and neglects and refuses, to pay over to the plaintiffs the sum of 4,485 97-100 dollars, so. received by him as plaintiffs’ agent, although such payment has been duly demanded from him. ” Code Civil Proc. N". Y. § 549, provides that a defendant may be arrested in an action, where the action is brought to recover for money received, or to recover damages for the conversion or misappropriation of property, “ where it is alleged in the complaint that the money was received, or the property was embezzled or fraudulently misapplied, by a public officer, attorney, solicitor, or counsel, or an officer or agent of a corporation or banking association in the course of his employment, or by a factor, agent, broker, or other person in a fiduciary capacity. ” Defendant moved to vacate an order of arrest issued in the action, on the ground that the arrest as made was an abuse of the process of the court, and based a separate motion for the vacation of such order upon the papers upon which the order was granted. From orders denying these motions, and from a judgment rendered for plaintiffs on the answer, defendant appeals.

Argued before Van Brtjnt, P. J., and Brady and Daniels, JJ.

*Wüliatn J. Gaynor,*for appellant. *Lord, Bay & Lord,*for respondents;

Van Brunt, P. J.

The ground upon which this motion is based is that one Macdonald, a private detective, forcibly detained the defendant until the sheriff of Kings county could arrest him. It seems to us that this claim is established beyond all question. It is true that it is claimed that the plaintiffs’ affidavits, by preponderance of proof, show that no such thing had occurred; and that both Macdonald and Yaxley, the agent of the plaintiff swear that no compulsion whatever was used, and no false pretenses made; but that the defendant went with them voluntarily to the Fulton-Street police station, and apparently was very anxious to have the officer in charge detain him until the sheriff could come to arrest him; and that after the officer in charge refused to detain him, and he was proceeding with them voluntarily to the jail, he broke away, tripped up Macdonald, striking him so that he fell; that he was thereafter caught by two policemen, arrested, and, upon a charge by Macdonald, held at the station-house for assault. A more improbable story has seldom come under the consideration of the court. It bears upon every part of it the stamp of falsity. If Howard was willing to go with these people, why go to the station-house, and ask the sergeant in charge to hold him *451until the sheriff could come there to arrest him? If these parties were not-detaining him, why was it necessary for the defendant to trip Macdonald up, and knock him down, in order to get out of his custody? The conceded facts-upon'the part of Macdonald and Yaxley prove beyond all question that they were guilty of a gross abuse of power, such as private detectives are altogether too prone to indulge in, and for which they should be severely punished. This man undoubtedly represented himself to be an officer, took forcible possession of the defendant, compelled him to go with him, and endeavored to get him held at the station-house until the sheriff could arrest him. If that is not an abuse of any power ever conferred upon him, it is difficult to see how any power could be abused.

It is sought to sustain this arrest upon the ground that because the detention of the defendant upon the crime charged, of an assault, resulted in his, arrest in this action, that therefore this motion should not be granted; but. when we find from the very facts of the case, beyond reasonable doubt, that without the slightest semblance of authority this man Macdonald was exercising dominion over the defendant for the purpose of subjecting him to arrest, no such consideration can prevail. It is said that Howard was convicted of this assault; but how the magistrate could ever have been induced, under the facts appearing in this case, to convict Howard of assault, it is difficult, to imagine. But that in no way deprived Howard of the protection of the-law; nor could he, therefore, be permitted to be kidnapped for the purpose of' bringing him within the power of the sheriff to serve an order of arrest.

It is urged that even if Macdonald, under these circumstances, was, in Brooklyn, only a private citizen, and had forcibly held the defendant until the-sheriff arrived, that would be no reason why this court should ignore and defeat its own process by discharging the defendant. It must be recollected that a private citizen has no right to interfere with the liberty of another unless afelony has been committed in his presence, and the person whose liberty is interfered with is guilty of the crime. Ho such condition of affairs existed in this case. It is necessary, in order that an officer shall be justified in the-execution of a civil process, that the right of arrest shall be exercised in his. jurisdiction, and that he have present with him his authority to make the arrest; and it is a familiar principle that a man has the right to protect his liberty, using all the force necessary. It is apparent from the conceded facts that these two men seized forcibly upon the defendant for the purpose Of subjecting him to the execution of this process. We do not think that such procedure can be tolerated in this court. The motion to discharge him from arrest should have been granted, and the order of arrest vacated, because of the abuse of the process. The order should be reversed, with $10 costs and disbursements, and the order of arrest vacated, with $10 costs. All concur.

APPEAL FROM ORDER GIVING JUDGMENT ON THE ANSWER.

Van Brunt, P. J.

The complaint alleges that the plaintiff consigned to. the defendant a large quantity of goods to sell for them; that he sold the-goods, and received therefor a certain sum of money, which he refuses to pay over to them, though they demanded it. The answer admits the copartnership of the plaintiffs, and that he was their agent; that they consigned goods to him; that he sold some of such goods, and received the sale price of some of the goods so sold; and denies each and every other allegation in the complaint contained. This is a clear denial of the allegation that he has not paid the money over.

It is urged upon the part of the plaintiff that their cause of action rests-simply upon the fact that the defendant, as their agent, has received money belonging to them, which he has not paid over, and that this the answer admits. We fail to see where, in the answer, an admission of the last proposition, viz., that he has not paid the money over, can be found. The answer *452admits the sale of some of the goods, and the receipt of some of the money, and denies each and every other allegation. In order that the plaintiffs should succeed, it is admitted that it should allege that this money had not been paid over; and, if that is a necessary part of the complaint, it is difficult to see why a denial does not raise a material issue. It has become a familiar rule that an answer cannot be stricken out as sham or frivolous which raises any general issue.

Some question is made in regard to the form of the denial; that it is not recognized by the Code, and must therefore be disregarded. We fail to see in what respect it is deficient. It shows clearly what it means, and that it denies the allegation that the defendant has not paid over the money received by him as agent. The order should be reversed, with $10 costs and disbursements. All concur.

APPEAL FROM ORDER DENYING MOTION TO VACATE ORDER OF ARREST UPON THE PAPERS UPON WHICH IT WAS GRANTED.

Van Brunt, P. J.

The ground upon which the order of arrest in this case was issued was undoubtedly because of the misappropriation by the defendant of money claimed to have been received in a fiduciary capacity. The complaint does not contain the allegations required by section 549 of the Code, which are necessary to sustain an order of arrest. *Bartlett*v. *Sutornis,*6 N. Y. Supp. 406. The order appealed from should be reversed, with $10 costs and disbursements. All concur.