Barrett, J.:
The action is for a false imprisonment. The defendant and one Cottrell, both police officers, arrested the plaintiff without a warrant. The circumstances, as detailed by the defendant in his testimony, were probably sufficient to justify the arrest. They showed ground for the suspicion, and possibly reasonable ground for the belief, that the plaintiff had not come honestly by the silverware and jewelry which he then had in a small satchel, and which he had just attempted to pawn. There was, however, a conflict of testimony with regard to the attendant circumstances. The plaintiff gave an entirely different version of them from that given by the defendant. According to the plaintiff’s version, there certainly was not enough to justify any fair-minded man in the belief that he had committed a felony; or, at the very least, the question on that head was for the jury. The plaintiff testified, in substance, that he had rooms at No. 98 Fifth avenue, where he had been living for seven or eight months; that on the 8tli of November, 1893, he put some silver[332]*332ware and jewelry (which was lawfully in his possession and which he was authorized to dispose of) into a small satchel, and went to a pawn shop with the intention of pawning it. The pawnbroker examined the property, but would not advance the sum which the plaintiff required. He thereupon put the property hack into the satchel and started for home. It was then about six o’clock in the afternoon. He had gone but a short distance when the defendant and Cottrell came up behind him and touched him on the shoulder, saying, “ What have you got in that bag ? ” The plaintiff turned and saw these two men, who were entire strangers to him and who exhibited no insignia of authority. He replied at once, “ None of your business; take your hand off my shoulder.” The defendant then said, “We are officers, and you are under arrest.” The plaintiff inquired, “ What for?” and the defendant rejoined, “ Well, we want to know what you have got in that bag.” The plaintiff asked them to show their authority for arresting him, and offered to prove in a very few minutes his ownership of the property. He begged them to go with him to his residence, and said that the janitor there would prove to them who he was. They refused in a most brutal manner, calling him a vile name, swearing at him, and even beating him. They then actually handcuffed him and took him in that condition through the streets to police headquarters.
The verdict conclusively shows that the jury believed this testimony, and decided that the circumstances which the plaintiff thus narrated failed to furnish reasonable ground for the belief that he had come dishonestly by the property in the bag, and that these circumstances were consequently insufficient to justify the arrest. The question on that head was fairly submitted to the jury, and the result is that the arrest was a trespass, and, we may add, an aggravated one.
It is, however, sought to justify the arrest upon the ground that, although there may have been no reasonable cause to believe that the plaintiff was guilty of a felony, yet he was in fact guilty of the misdemeanor of carrying a concealed weapon, namely, a loaded pistol. The contention is that, although the pistol was actually concealed when the arrest for the felony was made, yet the misdemeanor of carrying it was then and there committed in the presence, as distinguished from the sight, of the officers. It is [333]*333true that the plaintiff then had upon his person a loaded pistol, and the defendant says that Cottrell suspected as much. The pistol was not drawn or exposed to view, but Cottrell — so the defendant testified — called out, “ Look out, Maurice ; he has got a gun in his pocket.” As we have already seen, the jury disbelieved the defendant’s testimony. But, further, the learned trial justice, at the request of the defendant’s counsel, instructed the jury that, if the officers arrested the plaintiff for the offense of carrying a concealed weapon, the defendant was not liable. Thus the jury, by their verdict, found that the arrest was solely for the felony. It is a little difficult to understand, under these circumstances, what bearing the fact that the plaintiff then had in his possession a concealed weapon, and was subsequently fined for that offense, can have upon the question whether this arrest for the felony was legal or illegal. He was not arrested for carrying the pistol So the jury has necessarily found. He was arrested solely for the felony. Subsequently, when it was found that the defendant’s position with regard to the felony was untenable, the plaintiff was detained upon the supplemental charge of carrying a concealed weapon. The justification pleaded for the arrest is that the defendant and his fellow officer had reasonable cause to suspect that the plaintiff was committing a felony. There is not a word in the answer justifying the original arrest upon the ground that a misdemeanor was being committed in their presence. The only allusion to the pistol to be found in the answer is the statement that, after the plaintiff had been arrested and tahen to the police headquarters, the defendant found a pistol in his hip pocket. The justification cannot be separated from the cause assigned for the arrest, and applied to an unassigned cause. The right to arrest without a warrant depends upon the relation of the attendant circumstances to the specific accusation. There can be no general right to arrest a citizen for an undisclosed offense. The statute requires the officer to inform the arrested person of his authority and the cause of the arrest, except when the person arrested is in the actual commission of a crime. (Code Crim. Proc. § 180.) The latter exception relates to an open and visible crime, or to one brought to light at the time of the arrest. Where there is no overt act of criminality, or visible offense committed in the immediate [334]*334presence of the officer, he must inform the arrested person of the cause of the arrest. He cannot arrest a man for one cause and, when that is exploded, justify for another. Such a doctrine would be an incentive to the loosest practices on the part of police officers and a dangerous extension of their sufficiently great powers. They cannot be too firmly told that there is no such lawful thing as an arrest without an apparent or disclosed cause, to be justified thereafter by whatever may turn up. If the arrest here had been upon a void warrant, the defendant’s position with regard to the misdemeanor would have been substantially the same as it now is. He could with equal propriety have said, “ I arrested the plaintiff on » the warrant for the felony. I did not arrest him without a warrant for the misdemeanor committed in my presence. Had I known, however, that he was carrying a pistol, I might have arrested him therefor.” The plain answer would be, “ But you did not do it. You cannot arrest a man merely because, if all were known, he would be arrestable. Yon arrest him for some specified cause, and you must justify for that cause.”
This question was presented in Murphy v. Kron (8 N. Y. St. Repr. 230). There the arrest was under a warrant, but it was unlawfully executed in the night time. It was held that there was a false imprisonment the moment the defendants took the plaintiff into custody under the warrant. When the officers demanded admittance to the plaintiff’s house he fired off a revolver. They defended their action upon the ground that, as the revolver was then used in their presence, under circumstances which constituted a crime, they were justified in arresting the plaintiff.
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Barrett, J.:
The action is for a false imprisonment. The defendant and one Cottrell, both police officers, arrested the plaintiff without a warrant. The circumstances, as detailed by the defendant in his testimony, were probably sufficient to justify the arrest. They showed ground for the suspicion, and possibly reasonable ground for the belief, that the plaintiff had not come honestly by the silverware and jewelry which he then had in a small satchel, and which he had just attempted to pawn. There was, however, a conflict of testimony with regard to the attendant circumstances. The plaintiff gave an entirely different version of them from that given by the defendant. According to the plaintiff’s version, there certainly was not enough to justify any fair-minded man in the belief that he had committed a felony; or, at the very least, the question on that head was for the jury. The plaintiff testified, in substance, that he had rooms at No. 98 Fifth avenue, where he had been living for seven or eight months; that on the 8tli of November, 1893, he put some silver[332]*332ware and jewelry (which was lawfully in his possession and which he was authorized to dispose of) into a small satchel, and went to a pawn shop with the intention of pawning it. The pawnbroker examined the property, but would not advance the sum which the plaintiff required. He thereupon put the property hack into the satchel and started for home. It was then about six o’clock in the afternoon. He had gone but a short distance when the defendant and Cottrell came up behind him and touched him on the shoulder, saying, “ What have you got in that bag ? ” The plaintiff turned and saw these two men, who were entire strangers to him and who exhibited no insignia of authority. He replied at once, “ None of your business; take your hand off my shoulder.” The defendant then said, “We are officers, and you are under arrest.” The plaintiff inquired, “ What for?” and the defendant rejoined, “ Well, we want to know what you have got in that bag.” The plaintiff asked them to show their authority for arresting him, and offered to prove in a very few minutes his ownership of the property. He begged them to go with him to his residence, and said that the janitor there would prove to them who he was. They refused in a most brutal manner, calling him a vile name, swearing at him, and even beating him. They then actually handcuffed him and took him in that condition through the streets to police headquarters.
The verdict conclusively shows that the jury believed this testimony, and decided that the circumstances which the plaintiff thus narrated failed to furnish reasonable ground for the belief that he had come dishonestly by the property in the bag, and that these circumstances were consequently insufficient to justify the arrest. The question on that head was fairly submitted to the jury, and the result is that the arrest was a trespass, and, we may add, an aggravated one.
It is, however, sought to justify the arrest upon the ground that, although there may have been no reasonable cause to believe that the plaintiff was guilty of a felony, yet he was in fact guilty of the misdemeanor of carrying a concealed weapon, namely, a loaded pistol. The contention is that, although the pistol was actually concealed when the arrest for the felony was made, yet the misdemeanor of carrying it was then and there committed in the presence, as distinguished from the sight, of the officers. It is [333]*333true that the plaintiff then had upon his person a loaded pistol, and the defendant says that Cottrell suspected as much. The pistol was not drawn or exposed to view, but Cottrell — so the defendant testified — called out, “ Look out, Maurice ; he has got a gun in his pocket.” As we have already seen, the jury disbelieved the defendant’s testimony. But, further, the learned trial justice, at the request of the defendant’s counsel, instructed the jury that, if the officers arrested the plaintiff for the offense of carrying a concealed weapon, the defendant was not liable. Thus the jury, by their verdict, found that the arrest was solely for the felony. It is a little difficult to understand, under these circumstances, what bearing the fact that the plaintiff then had in his possession a concealed weapon, and was subsequently fined for that offense, can have upon the question whether this arrest for the felony was legal or illegal. He was not arrested for carrying the pistol So the jury has necessarily found. He was arrested solely for the felony. Subsequently, when it was found that the defendant’s position with regard to the felony was untenable, the plaintiff was detained upon the supplemental charge of carrying a concealed weapon. The justification pleaded for the arrest is that the defendant and his fellow officer had reasonable cause to suspect that the plaintiff was committing a felony. There is not a word in the answer justifying the original arrest upon the ground that a misdemeanor was being committed in their presence. The only allusion to the pistol to be found in the answer is the statement that, after the plaintiff had been arrested and tahen to the police headquarters, the defendant found a pistol in his hip pocket. The justification cannot be separated from the cause assigned for the arrest, and applied to an unassigned cause. The right to arrest without a warrant depends upon the relation of the attendant circumstances to the specific accusation. There can be no general right to arrest a citizen for an undisclosed offense. The statute requires the officer to inform the arrested person of his authority and the cause of the arrest, except when the person arrested is in the actual commission of a crime. (Code Crim. Proc. § 180.) The latter exception relates to an open and visible crime, or to one brought to light at the time of the arrest. Where there is no overt act of criminality, or visible offense committed in the immediate [334]*334presence of the officer, he must inform the arrested person of the cause of the arrest. He cannot arrest a man for one cause and, when that is exploded, justify for another. Such a doctrine would be an incentive to the loosest practices on the part of police officers and a dangerous extension of their sufficiently great powers. They cannot be too firmly told that there is no such lawful thing as an arrest without an apparent or disclosed cause, to be justified thereafter by whatever may turn up. If the arrest here had been upon a void warrant, the defendant’s position with regard to the misdemeanor would have been substantially the same as it now is. He could with equal propriety have said, “ I arrested the plaintiff on » the warrant for the felony. I did not arrest him without a warrant for the misdemeanor committed in my presence. Had I known, however, that he was carrying a pistol, I might have arrested him therefor.” The plain answer would be, “ But you did not do it. You cannot arrest a man merely because, if all were known, he would be arrestable. Yon arrest him for some specified cause, and you must justify for that cause.”
This question was presented in Murphy v. Kron (8 N. Y. St. Repr. 230). There the arrest was under a warrant, but it was unlawfully executed in the night time. It was held that there was a false imprisonment the moment the defendants took the plaintiff into custody under the warrant. When the officers demanded admittance to the plaintiff’s house he fired off a revolver. They defended their action upon the ground that, as the revolver was then used in their presence, under circumstances which constituted a crime, they were justified in arresting the plaintiff. But the court—Justice Haight writing—■ held that they were bound by the arrest under the warrant and could not offer another cause sufficient to warrant the plaintiff’s apprehension in justification of their action.
There is still another reason why the defendant should be held in this action. Even if the arrest was justified because, as matter of • undisclosed fact, the plaintiff was carrying a concealed weapon, . there was a distinct breach of the defendant’s subsequent duty. That duty was to take the plaintiff before a magistrate without unnecessary delay and charge him with the offense. His failure to do this made him a trespasser ab initio and liable' for false impris[335]*335onment. (Pastor v. Regan, 9 Misc. Rep. 547.) In the latter case-justice Rumsey said : “ The rule laid down in the Six Carpenters’ Case (6 Coke, 146) that if a man abuse an authority given him by the-law he becomes a trespasser ab initio has never been questioned. Indeed, the rule is not questioned in this motion, but the suggestion is made by the counsel for the defendant that this rule does not. apply to the case of an arrest, but only to cases of unlawful or other seizures of property. That does not seem to be the case here. In the case of Tubbs v. Tukey (3 Cush. 438) the precise question presented here was presented to the court, and it was held that the rule, laid down in the Six Carpenters’ case applied to cases in which the arrest was legal, but the subsequent detention was illegal and. unreasonable.”
The case of Brock v. Stimson (108 Mass. 520) was also cited, a. case which fully supports the rule there laid down. .
Let us now look at the facts of the present case with relation to the question of unlawful detention. The plaintiff was arrested upon the evening of the eighth of November. He was then locked •up at police headquarters for the night. Upon the morning of the ninth the defendant and Cottrell took him before a magistrate and there charged him with being a “ suspicious person.” They then made no charge of carrying a concealed weapon. On the contrary, they asked the magistrate to remand the plaintiff to their custody for another day to enable them to make inquiries about him and about the property which they suspected he had stolen. They succeeded in inducing the magistrate to do this, and accordingly the plaintiff was confined for another day and night at police headquarters while they prosecuted their inquiries. He was again taken before the magistrate on the ■ morning of the tenth. Then the defendant and Cottrell, having concluded that they could not sustain their original accusation for the-first time —we mean for the first time in any court or before any magistrate — charged the plaintiff with the misdemeanor. He was thus detained from the. morning of the ninth until the morning of the tenth unnecessarily and illegally—and deprived of the right to give bail — so far as the charge of carrying a concealed weapon was concerned. Thus_ the officers utilized the felony charge to detain the plaintiff for at. least twenty-four hours beyond the time when he was entitled to his. [336]*336discharge upon bail upon the misdemeanor charge. And the latter charge, though entered alternatively on the blotter at police headquarters, was only made to the magistrate as'a last resort when it was found that the real charge upon which he had been detained could no longer be adhered to. Upon principle and authority this conduct of the defendant made him liable as a trespasser ab initio. Beyond peradventure he was liable for every hour that he detained the plaintiff after lie and his associate secured the remand from the magistrate for a reason which could not have availed them had they then charged the plaintiff with the misdemeanor.
Upon both of the grounds discussed we think the judgment was right and should be affirmed, with costs.
Rumsey and McLaughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.