Herman Zwickert, Respondent, v. The Brooklyn Heights Railroad Company, Appellant

Herman Zwickert, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Second' Department, June 18, 1908. False imprisonment — erroneous charge. Where the issue in an action for false imprisonment is as to whether the arrest were caused by the defendant, it is error to charge that, if the- defendant makes no claim that á crime was committed by the plaintiff, the only question for the jury is as to whether there was or was not an imprisonment, for the charge takes the responsibility of the defendant for the arrest from the consideration of the jury. Appeal by the defendant, The Brooklyn Heights Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of December, 1907, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 19th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes. D. A. Marsh [George D. Yeomans with him on the brief], for the appellant. William A. McQuaid, for the respondent. [MAJORITY — Rich, J.:] Rich, J.: The plaintiff has recovered a judgment against defendant for false arrest and imprisonment. . It conclusively appeared upon the trial that plaintiff had committed no crime and that his arrest was illegal and unjust.. The question litigated was whether the arrest was caused by defendant. Clearly the defendant was not liable for the arrest unless it took- some part in bringing it about, and while this was the real question -of fact to be presented to the jury, the trial justice charged at the request of plaintiff’s counsel, “ that if the defendant makes no claim that there was any crime committed by this plaintiff,- the simple question for the jury to determine' is whether there was or was not an imprisonment and restraint of the person of the plaintiff.” ‘ The effect of this charge was to take from the consideration of the jury the question whether the defendant was responsible for the arrest. This charge was erroneous, and the judgment and order must be reversed, with costs. Woodward, Jenks, Gaynor and Miller, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.