Opinion
November 14, 1951.
Appeal from Supreme Court, St. Lawrence County.
The appeals are from judgments of nonsuit in appellants' actions for false imprisonment. Appellants are thus entitled to every favorable inference from the evidence in the case. Viewed in this way it must be regarded as established that defendant, a chief of police of Ogdensburg, and wearing his uniform and a badge, stated to the appellants, who are husband and wife, that they were under arrest for taking a machine out of a doctor's office; that defendant required them to accompany him in an automobile some four miles to a house, and then told them to appear later before a magistrate. No information was ever presented before a magistrate by defendant and there was no arraignment of appellants at any time. The detention, as shown by the record, was a sufficient exercise of control over the persons of plaintiffs to be actionable. ( Stevens v. O'Neill, 51 App. Div. 364; Tobin v. Bell, 73 App. Div. 41; Callahan v. Searles, 78 Hun 238.) The only justification for an arrest, and the only purpose for detention of the person under the law are to initiate and insure a subsequent criminal prosecution in a court. If there is no arraignment, the arresting officer is a trespasser ab initio and probable cause or justification for the arrest is not protection to him. ( Pastor v. Regan, 9 Misc. 547; Hendrix v. Manhattan Beach Development Co., 181 App. Div. 111, 117; Tobin v. Bell, supra, p. 46.) In this case we think it fair to add that in the light of the defendant's financial interest in the purported stolen article and the claim of title of the person at whose request the article was taken, both fairly inferable from the record, there would, even if the question of arraignment were not in the case, seem to be a triable issue as to the probable cause for the arrest. Judgments reversed and a new trial ordered, with costs to appellants to abide the event. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.