Cullen, Ch. J.
This action ivas brought against the appellant and a special police officer, Thomas O’Reilly, for damages for false imprisonment. The appellant conducted a large department store or shop in the city of Brooklyn. In August, 1898, a Mrs. Margaret Gillin, a customer at the store, while examining goods exposed for sale, left her satchel containing the sum of twenty-five dollars in money with other articles on a counter or table in the shop. While her attention was diverted from her satchel it was carried off. After stating her loss she was told by a clerk of appellant to go to the entrance of the store and to watch there for any one taking the satchel out. This she did, and observed the plaintiff with the satchel apparently seeking to leave the store. She demanded the satchel, which was surrendered to her, opened it and found her money was gone. She called the attention of a floorwalker of the defendant to the fact, and he brought the defendant O’Reilly, a special policeman, to the scene. Mrs. Gillin told the policeman of her loss, and upon such complaint being made, according to the plaintiff’s testimony, the following colloquy -took place between her and the police officer: “ He came running over very excitedly and grabbed me by the left arm, and asked me if I had that satchel, and I said,
‘ Yes, sir, I had the satchel.’ And he said, ‘Well, where is the money ? ’ I said, ‘ Officer, I know nothing of the money whatever. A lady on the balcony asked me if I would be kind enough to hand this satchel to this woman.’ And he said, ‘ Oh, come off, come off, who was the other woman ? ’ I said, ‘ Officer, I never saw her face before, as God is my judge.’ ‘ Wei!,’ he said, ‘ well, tell me who she is, and where the money is and I will let you go.’ And I said, ‘ Officer, don’t you dare insult me like this. You investigate this case and you will find I am telling the truth. I am a respectable married woman and- the mother of children and would not be guilty of a thing like this.’ He said, ‘ Well, then, yon have to go to the station house; step outside.’ I said I was a respectable married woman and lived at 1854a Pacific Street. He wouldn’t listen to me, he shut me up. I did not tell him my name when I was speaking to him, he wouldn’t listen.” Thereupon the plaintiff was arrested, taken to the station house, detained to next day, when on examination before the magistrate she was committed to await the action of the grand jury. Ho bill against her was found bv the grand jury. Thereafter this action was instituted. The case was submitted to the jury, which found a verdict for the plaintiff, and the judgment on that verdict has been unanimously affirmed by the Appellate Division, though it allowed an appeal to this court.
Since the affirmance of the Appellate Division was unanimous we are precluded from reviewing the motion for a non-suit made at .the close of the case, and we find no exception in the record sufficient to raise the question whether, on thstate of facts as testified to by the plaintiff herself, there was not reasonable cause for believing the plaintiff to have committed the felony which appears on the trial concededly to have been committed. Though the plaintiff was, in fact, innocent, still, if the circumstances were such as would justify a careful and prudent person, acting circumspectly, in believing that the plaintiff was guilty of the offense, there yyas reasonable cause and the arrest was justified. (Code
Crim. Pro. § 177, sub cl. 3.) The complaint in this action appears to have been framed in the doable aspect of an action for false-imprisonment and malicious prosecution charged in a single count. On a previous appeal from a judgment recovered by the plaintiff the learned Appellate .Division held that “the proof wholly failed to establish Want of probable cause. The possession of the stolen property by the respondent, notwithstanding her explanation, being sufficient to support a conviction, it cannot be said that it was insufficient to warrant a prosecution. So far, therefore, as the verdict may have been based on the claim of malicious prosecution, it must be regarded as without warrant of law, and the judgment must be reversed, if for no other reason than because it may be founded on this unproven claim.”
(Tyson
v.
Bauland Co.,
68 App. Div. 310.) With this view we are inclined to concur, but we are at a loss to perceive why it was not equally fatal to the action for false imprisonment, for the legality of the arrest and the right to prosecute depended on exactly the same thing, to wit,.the existence of reasonable or probable cause, and that, where the facts are conceded, is a question by law. But, as already said, we do not find any exception cognizable in this court to fairly raise the question.
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Cullen, Ch. J.
This action ivas brought against the appellant and a special police officer, Thomas O’Reilly, for damages for false imprisonment. The appellant conducted a large department store or shop in the city of Brooklyn. In August, 1898, a Mrs. Margaret Gillin, a customer at the store, while examining goods exposed for sale, left her satchel containing the sum of twenty-five dollars in money with other articles on a counter or table in the shop. While her attention was diverted from her satchel it was carried off. After stating her loss she was told by a clerk of appellant to go to the entrance of the store and to watch there for any one taking the satchel out. This she did, and observed the plaintiff with the satchel apparently seeking to leave the store. She demanded the satchel, which was surrendered to her, opened it and found her money was gone. She called the attention of a floorwalker of the defendant to the fact, and he brought the defendant O’Reilly, a special policeman, to the scene. Mrs. Gillin told the policeman of her loss, and upon such complaint being made, according to the plaintiff’s testimony, the following colloquy -took place between her and the police officer: “ He came running over very excitedly and grabbed me by the left arm, and asked me if I had that satchel, and I said,
‘ Yes, sir, I had the satchel.’ And he said, ‘Well, where is the money ? ’ I said, ‘ Officer, I know nothing of the money whatever. A lady on the balcony asked me if I would be kind enough to hand this satchel to this woman.’ And he said, ‘ Oh, come off, come off, who was the other woman ? ’ I said, ‘ Officer, I never saw her face before, as God is my judge.’ ‘ Wei!,’ he said, ‘ well, tell me who she is, and where the money is and I will let you go.’ And I said, ‘ Officer, don’t you dare insult me like this. You investigate this case and you will find I am telling the truth. I am a respectable married woman and- the mother of children and would not be guilty of a thing like this.’ He said, ‘ Well, then, yon have to go to the station house; step outside.’ I said I was a respectable married woman and lived at 1854a Pacific Street. He wouldn’t listen to me, he shut me up. I did not tell him my name when I was speaking to him, he wouldn’t listen.” Thereupon the plaintiff was arrested, taken to the station house, detained to next day, when on examination before the magistrate she was committed to await the action of the grand jury. Ho bill against her was found bv the grand jury. Thereafter this action was instituted. The case was submitted to the jury, which found a verdict for the plaintiff, and the judgment on that verdict has been unanimously affirmed by the Appellate Division, though it allowed an appeal to this court.
Since the affirmance of the Appellate Division was unanimous we are precluded from reviewing the motion for a non-suit made at .the close of the case, and we find no exception in the record sufficient to raise the question whether, on thstate of facts as testified to by the plaintiff herself, there was not reasonable cause for believing the plaintiff to have committed the felony which appears on the trial concededly to have been committed. Though the plaintiff was, in fact, innocent, still, if the circumstances were such as would justify a careful and prudent person, acting circumspectly, in believing that the plaintiff was guilty of the offense, there yyas reasonable cause and the arrest was justified. (Code
Crim. Pro. § 177, sub cl. 3.) The complaint in this action appears to have been framed in the doable aspect of an action for false-imprisonment and malicious prosecution charged in a single count. On a previous appeal from a judgment recovered by the plaintiff the learned Appellate .Division held that “the proof wholly failed to establish Want of probable cause. The possession of the stolen property by the respondent, notwithstanding her explanation, being sufficient to support a conviction, it cannot be said that it was insufficient to warrant a prosecution. So far, therefore, as the verdict may have been based on the claim of malicious prosecution, it must be regarded as without warrant of law, and the judgment must be reversed, if for no other reason than because it may be founded on this unproven claim.”
(Tyson
v.
Bauland Co.,
68 App. Div. 310.) With this view we are inclined to concur, but we are at a loss to perceive why it was not equally fatal to the action for false imprisonment, for the legality of the arrest and the right to prosecute depended on exactly the same thing, to wit,.the existence of reasonable or probable cause, and that, where the facts are conceded, is a question by law. But, as already said, we do not find any exception cognizable in this court to fairly raise the question.
This brings us to the further question of the liability of the appellant for the arrest by O’jReilly. He was appointed’ by the police board a special patrolman under the provisions of section 308 of the Greater New York charter, which authorize the appointment of such officers to do special duty at any place in the city of New York upon the persons or corporations by whom the application is made paying in advance such patrolman’s salary, and as such the officers are “subject to the orders of the chief of police and shall obey the rules and regulations of the Police Department and conform to its general discipline and such special regulations as shall be made, and shall during the term of their holding appointment possess all the powers and discharge all the duties of the police force, applicable to regular patrolmen, and may be at
any time removed by the police board.” The application fur O’Reilly’s appointment was made by the appellant and by it he was paid his salary. The defendant admitted in its answer that such .application was made in order “to protect itself and its patrons from thieving, keep the peace on its premises and prevent mischief- and disorder on the part of intoxicated or disorderly persons.” It expressly denied, however, that it authorized the pIaintifFs~arrest, and alleged that the arrest was made solely on the authority of ,..rj¿Rxnd.l.v-fls^_pAJi^.ft-offiftet-“WeIiave recently, in the case of
Sharp
v.
Erie Railroad. Co.
(184 N. Y. 100), had occasion to examine the liability of a railroad company for the acts of a deputy sheriff in the employ of the company for the protection of its property, and it was there said by Judge O’Binkn that the railroad company employing a servant who happens to be a public officer acquires no immunity by such employment. There the act done by the employee was in the protection of the employer’s property, the boy assaulted having been stealing a ride, and it was held to be a question of fact for the jury to determine whether the servant acted within the scope of his employment or in the capacity of a public officer. Here, however, the act was done by the policeman, not in the protection of his master’s property, not in the discharge of the master’s duty to maintain peace and order on the premises, but solely on the personal complaint, of Mrs. Grillin. whose property had been stolen. Eeitlier the defendant nor any of its employees instigated the arrest or seem to have tS5eñ-mTyqmTtTii it except that when the altercation occurred* ^between Mrs. GRUin amLtk.e plaintiff as to the theft, the floorwalker called the police officer to the scene. The appellant owed Mrs. Grillin no duty as to ths matter. The ease is not all similar to that of
Bunnell
v. Stern (122 N. Y. 541). There the customer was invited to lay off the cloak which she was wearing while trying on a new garment. She put it on a counter, the only place provided for the purpose, from which it was stolen. It was held that the defendant was bound to use some care for the property necessarily laid aside by his implied
invitation in oiklei’ to attend to the business in hand. Iji_th.e._ j)resent ca§g. there was no invitation, express or implied^for ‘Mrs. Gillin^to lay aside her satchel. The case was substantially the same as if money had been purloined from her pocket. Doubtless the keeper of a store or shop owes some duty to the customers who frequent it.
lie is
bound to maintain order, and probably to eject therefrom persons whose conduct and demeanor is such as to threaten the security of the persons or property of his customers, llis responsibility is not at most greater than that of a common carrier or an innkeeper. Even as to the former it has been held that there is no such privity between a railroad company and a passenger as would make it liable for the wrongful act of one passenger on another.
(Putnam,
v.
Broadway
&
Seventh Ave. R. R. Co.,
55 N. Y. 108.) It was there said that while the company has the power of refusing to receive or accept any person who is drunk, disorderly, riotous, or so demeans himself as to endanger the safety or interfere with the comfort or convenience of the passengers, and may eject from the cars any one so offending, it is not liable for wanton assault committed by one passenger upon another where there is nothing in the conduct or the appearance of the offender to warrant the conductor in anticipating danger from him. So, also, a company is not liable for the theft of an overcoat taken from the seat of a passenger, or for other property retained in his possession while traveling
(Tower
v.
Utica & Schenectady R. R. Co.,
7 Hill, 47); this, of course, in the absence of negligence on the part of the company. Therefore, the appellant was in no wav liable for the theft of Gillin’s property. It is urged by the learned counsel for the respondent thaFTiowever this may be, the appellant assumed to protect the persons and property of its customers, and has só admitted in its_answerr—But in what manner did if, seek to protect its customers? Not by assuming to arrest by its servants or employees any offender, but by obtaining the constant presence on the premises of a policeman, a public officer, both empowered and enjoined by law to arrest offenders, and
for that purpose paying his salary. In his conduct in matters not relating to duties and obligations or property of the" appellant he is not to he considered as acting as its servant. Hut as an officer of The learned trial judge seems to have been of this opinion, for in response to a request by the appellant he expressly charged that the acts of O’Reilly in connection with the arrest of the plaintiff were performed in his capacity as a police officer of the city of Hew York. But a further request to charge that for such act the appellant" was not liable he refused, to which refusal the defendant duly excepted. This exception presents a question of law, which is before us for review. In our opinion the refusal of the learned trial judge to charge this request was manifest error. The appellant was liable only for acts committed by O’Reilly as its employee, not in his conduct as a police officer. If it be assumed that under the evidence the jury might have found that O’Reilly acted as the employee of the appellant, that would not cure the error of the court in refusing the appellant’s request to charge. The jury, to say the least, might have found that O’Reilly in making the arrest of the plaintiff acted as a police officer, and the appellant was entitled in such event to the specific charge that for his act as a police officer it was not liable.
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
IIaight, Vann, Werner ■ and Hisooox, JJ., concur; Willard Bartlett, J., not sitting; Gray, J., absent.
Judgment reversed, etc.