Clark v. Starin

54 N.Y. Sup. Ct. 345, 14 N.Y. St. Rep. 558

• Court: New York Supreme Court
• Decided: February 15, 1888
• Status: Published

Opinion

Barnard, P. J.:

Tbe defendant is tbe owner of Glen Island, in Westchester county. He makes use of it as a place of resort of persons desiring recreation and amusement. Tbe island is reached by a boat which is owned and operated by defendant, and also by other independent lines of steamers. Tbe defendant’s son was tbe manager of tbe island for tbe defendant. Tbe defendant employed one Hines to be policeman on tbe island in tbis way. He agreed with one Pinkerton to furnish all the police needed, and Pinkerton put on men and made Hines captain. Tbe plaintiff was a ticket taker in defendant’s employment. Tbe defendant’s son and Hines arrested plaintiff for larceny. He was, after being annoyed by delays and much apparent ill-treatment, discharged. The act was within the scope of the employment of both Starin, defendant’s son, and of Hines, the captain of the defendant’s voluntary police. It. was in the master’s sole interest that the arrest was made. Neither the defendant’s son or the officer had any separate or personal benefit to be promoted by the arrest. The police was there to make arrests in defendant’s interest. The arrest was without warrant and the officer stated that it was left to him when it was “ on this (Glen) Island.” For such an arrest directed and approved of by the defendant’s manager, an action will he against the master. (Quinn v. Power, 87 N. Y., 535; Rounds v. Del., Lack. and West. R. R. Co., 64 N. Y., 129 ; Cohen v. Dry Dock, etc., R. R. Co., 69 N. Y., 170; Hoffman v. N. Y. C. and H. R. R. R. Co., 87 N. Y., 25.)

The judgment should be reversed and a new trial granted, costs to abide the event.

Pratt, J.:

This is an action for false imprisonment, wherein a vérdict was - directed for the defendant.

The defendant is the owner of Glen Island, a summer resort for daily visitors, and the plaintiff was in his employ. It appears from the answer that the defendant employed the Pinkerton’s (a detective agency) to take charge and control of the island, so far as the police regulations were concerned, and they employed men for that purpose. It seems the plaintiff was suspected of having unlawfully obtained some tickets, the property of the defendant, and he was accordingly arrested without warrant and detained for several hours by such police officers. No justification is shown for such arrest. So far as the case shows, the plaintiff had been guilty of no offense, and it does not, in fact, appear that any offense had been committed. It was, therefore, not a case authorizing an arrest, without warrant. The defendant, however, claims that he is not liable, because the arrest was not within the scope of the authority conferred by the defendant upon the parties making the arrest. The question is not whether the particular act was authorized, but whether the servant was engaged in his master’s business and acting within the general scope of his authority. The test is whether the act complained of is in the course of the employment or outside of it. Here the Pinkertons had general authority to do all necessary police acts.. The management of this business was confided to them, and if through lack of judgment or discretion, or even infirmity of temper they went beyon'd the strict line of authority, the defendant must be held hable. (Cohen v. Dry Dock, etc., R. R., 69 N. Y., 170; Shea v. Sixth Ave. R. R., 62 id., 180.)

All who were engaged in the arrest were principals, and one of the parties, Myndert Starrin, who was prominent in the matter, was the general manager of the island under the defendant. We think it clear there was enough to go to the jury upon the question whether the defendant was the principal in the transaction. The defendant also claims in his answer that the arrest was made by the parties making it as peace officers of Westchester county, and not by virtue of any employment by defendant. That may constitute a good defense when pressed; as the case now stands it may fairly be inferred that the parties who made the arrest were acting under the defendant.

The ease of Mallach v. Ridley (43 Hun, 336), is not in point. The case lays down no new law but simply holds that a master is not liable for an arrest made by a servant outside of the fine of his duty, although the servant supposed he was acting within the scope of his authority. We think the present case should have-been left to the jury to determine whether the arrest was within the authority conferred on the officers.

Judgment reversed, new trial granted, costs to abide event.

Dykman, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.