Alois Lupinek, Respondent, v. Vincent W. Woytisek, Appellant, Impleaded with Joseph F. Brodil and Others, Defendants

Alois Lupinek, Respondent, v. Vincent W. Woytisek, Appellant, Impleaded with Joseph F. Brodil and Others, Defendants. First Department, January 26, 1906. Malicious prosecution—damages — when attorney aiding in prosecution- ' not liable for exemplary damages—erroneous-charge.- Although an attorney has conspired with other defendants to extort money from the pláiútiff after liis arrest on a criminal charge, he is liable in damages only for'.the"/money, so' extorted; With interest, and'is not liable for punitive damages for the ". wrong, injury-and disgrace of the original false arrest, wdien lie did not .participate in such arrest, but only took part.-in extorting the -rno'ney as a condition of plaintiff's release. It-is error to charge'that such defendant is liable for such punitive damages. , ■ Appeal by the, defendant, Vincent W^Woytisek, from a . judgment of the Supreme Court in part in favor of the plaintiff, éntered in the office of the clerk of the county of blew York oh the 26tli day of April, 1905, upon, /the verdict of a jury" and. also from am order entered nr-said, clerk’s office' on the 17tli day of May, 1.905, denying the said defendant’s .motion for a.new trial made upon the minutes. Edward Hymes, for the appellant. Ira B. Wheeler, for the respondent. [MAJORITY — Houghton, J.:] Houghton, J.: The action is for a conspiracy in procuring, the arrest of the plaintiff on a false charge of larceny and for defrauding him of $360, which he paid in compromise thereof. Plaintiff was in the employ of defendant Brodil as bartender, and, at the latter’s instigation,, defendant Tunney, a police officer^ arrested him without a warrant upon a charge of petit larceny and took him before a magistrate, in whose court defendant Here acted . as interpreter, and in. which, appellant Woytisek was present as an attorney. Plaintiff could not speak the language and was ignorant, of the • forms of law, and he charges that appellant and defendant Here represented to him that he ivas charged with grand larceny, for which he would serve a long term, in prison, but that if plaintiff would pay to them the $360, which the officer had in his possession, they would fix it so he would be released and suffer no imprisonment. Thereupon the -plaintiff, although protesting his innocence . and asserting that he had committed no crime, paid over-the money . to appellant Woytisek, and was permitted to leave the court. Ho formal complaint had been, made by Brodil, and he announced to the magistrate that he did not desire to press the charge. On a former trial the jury rendered a verdict in favor of defendants Brodil and Tunney, and against defendants Here and Woytisek, which the trial court set aside as to the two latter defendants as against the Ayeight of evidence.. On the second trial, which resulted, in the judgment appealed from, the jury rendered a verdict in favor of the defendant Here and against defendant Woytisek alone for $1,432, made up apparently by the $360 and interest thereon, and $1,000 damages. Plaintiff by his complaint seeks to recover the $360 which- he paid, together Avith damages for the false arrest and malicious prose- ■ cution, alleging, as special damages, loss of Avages from inability to obtain employment on account thereof. The appellant urges, amongst his reasons why the" judgment should be reversed, that the court erroneously charged that as an element of damage the plaintiff might, recover against appellant Woytisek compensation for the wrong and injury which had been done him by his unfounded arrest, and for the mortification and disgrace that came to him by reason of it. We think the exception to this charge was well taken. There is no sufficient proof 'that the appellant had anything to do with the original arrest or prosecution of the plaintiff. It is true that appellant produced on the trial a receipt from Brodil for $300 of the money which plaintiff paid to him. There may be some suspicious circumstances connected with the transaction, but the proof does not rise to the dignity of establishing that there was a conspiracy between the appellant and Brodil and ■ Tunney to bring about the original arrest of plaintiff. If any one was liable for damages to the plaintiff for that arrest it was Brodil and Tunney, and the jury on the former trial exonerated them by a verdict in their behalf. The damages for which the appellant was liable,, therefore, if he was liable at all, were confined to,the $360 which he obtained from the plaintiff, with interest thereon. Ho damages arising out of the wrongful arrest could be assessed against him, because there was no pipof that he participated in it. So far as the evidence discloses, the first that Woytisek, the appellant, had any thing to do in the matter was when the plaintiff was brought into the magistrate’s court by Tunney at the instigation of Brodil. The plaintiff by his testimony charges that then appellant'Woytisek and defendant Here conspired to induce him, by preying upon his fears and by falsely stating that the charge against him was that of grand larceny for which he would probably be imprisoned for a long term, instead of petit larceny which was the fact, to pay over to Woytisek the $360, which Tunney had tkken from plaintiff’s possession on liis arrest, in pretended settlement of the charge which plaintiff protested was false'. If appellant did, in fact, in collusion’ with Here or Brodil and Tunney, plan and conspire, to do, and did do, what plaintiff charges to beHhe fact, he committed a very serious wrong, and should bear the consequences, however serious they may be. It is quite plain that the verdict was made up from the $360 and interest, with $1,000 added as general damages. Inasmuch'"as the erroneous charge only relates to the damages thus added, it is possible that we would have the power to affirm the judgment on the plaintiff’s consenting to a modification, but we think, in view of the character of the charge made against the appellant and the serious consequences following it, that justice- will be best subserved by a reversal of the judgment and the granting of a new trial. On such new trial, unless the evidence shall be changed, the only question to be considered will be whether or not the appellant conspired with any of the other defendants to wrongfully .obtain the $360, or any sum from the plaintiff, and if the jury shall determine that such sum was thus ‘ wrongfully obtained by the appellant, the measure of damage will be confined to that amount of money, with interest thereon to the time of trial, and the jury will thus have the opportunity to consider that question alone unembarrassed by any question with respect to damages resulting to plaintiff by reason of his arrest or prosecution. The judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event. O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurre'd. . Judgment and order reversed, new trial ordered, costs to appellant to abide event.