#### Alfred V. Parke, Appellant, *v.*Emanuel Fellman and Interborough Rapid Transit Company, Respondents.

First Department,

July 7, 1911.

False imprisonment — probable cause — burden of proof — procuring arrest and participating therein — when corporation liable for act of special officer.

The plaintiff in an action for false imprisonment is not under the burden of proving lack of probable cause. This is true, although he alleges both malice and lack of probable cause, such allegations being unnecessary. The defendant may show that he had probable cause, not as a complete defense, but only to mitigate damages.

A person who causes the arrest of another without a warrantor other legal process and, as shown by the discharge by the magistrate of the' person arrested, did so without legal justification, is guilty of a trespass amounting to false arrest.

A private citizen who called, upon a police officer to make an unjustifiable arrest and participated actively therein by first undertaking to make the arrest himself, may be held liable for false imprisonment.

Where a special officer of a railroad company, employed to preserve order on its cars, arrests a person in the régular course of his duty on the charge that he is disturbing the peace, the railroad is liable for the act although the employee was commissioned as a police officer.

Appeal by the plaintiff, Alfred V. Parke, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of March, 19Í1, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. ■

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      *Andrew C. Morgan,*for the appellant.

*Bayard H. Ames,*for the respondent Interborough Rapid Transit Company.

*J. Garfield Moses,*for the respondent Reliman.

Scott, J.:

The action is for damages for false imprisonment. The plaintiff, a passenger upon the road of the defendant corporation, was arrested by one Whiteside, a special officer of said corporation, at the instance of the defendant Reliman, who charged plaintiff with disorderly conduct in that, as was charged, said plaintiff had cut or tom the dresses of women passengers. Whiteside had not seen plaintiff do anything, but arrested him and took him to a police station, where he. charged him with disorderly conduct, and caused him to be locked up. Reliman not only called upon the officer to make the arrest, but accompanied him to the police station, and afterwards appeared as a witness before the magistrate, who, upon a hearing, dismissed the charge and discharged plaintiff. The evidence clearly showed that there was no ground whatever for the charge against plaintiff, and that he had been guilty of no act constituting legal misconduct. The court dismissed the complaint upon the ground that the plaintiff had not sustained the burden of proving that the defendants had- no probable cause for the arrest. This was error, not only because there was ample evidence to carry the question of probable cause to the jury, if that had been in issue, but also because in an action for false . arrest or imprisonment no burden of proving a lack of probable cause rests upon the plaintiff. *(Brown*v. *Chadsey,*39 Barb. 253; *Schultz*v. *Greenwood Cemetery,*190 N. Y. 276.) In this regard an action like the present differs from an action for damages for malicious prosecution, wherein it is an essential element of the plaintiff’s case to allege and prove a lack of probable cause for the prosecution. It is trae that in this case the plaintiff alleged both malice and lack óf probable cause, but these, allegations were unnecessary. The plaintiff was arrested by the defendant Reliman and Whiteside conjointly, without a warrant or other legal process, and, as eventually appeared, without legal justification. This constituted a trespass and *838made out a case of false arrest. It was for defendants to show if they could that they had probable cause, and this not to wholly defeat the action, but to mitigate the damages. The defendant Reliman was an active agent in the arrest, and indeed first undertook to arrest plaintiff himself. He is, therefore, hable. Whiteside was a special' officer of the defendant corporation, employed, as appears, to' preserve order on the platform., It was in the course of his regular duty to arrest disorderly persons and disturbers of the peace, and his act in arresting plaintiff was in the line of his duty and his employer is responsible for his act. The fact that he was also commissioned as a police officer, if such be the fact, does not relieve his employers for his unlawful acts committed in the course of his duty. *(Shar*p v. *Erie Railroad Co.,*184 N. Y. 100.)

It follows that the judgment must be reversed and a new trial granted, with costs to appellant to abide the result.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. '

.. judgment 'reversed,- new trial ordered, costs to appellant to abide event.