Peckham v. Tomlinson & Ney , 6 Barb. 253 ( 1849 )

By the Court, Gridley, J.

To justify a report against the defendant Ney, the referee must have found that he either directly or indirectly participated in the imprisonment of the plaintiff. It is true, he procured the original warrant to be issued, prior to the arrest of the plaintiff; but that arrest, and the imprisonment under it, were lawful. If the plaintiff was ever arrested under the warrant of commitment, (of which there is great reason to doubt, notwithstanding the general statement of the constable,) there is no proof that Ney directed, or participated in, such arrest, or even knew that a mittimus was issued. True, he was the original complainant, and was a witness on the trial of the plaintiff; but that does not make him responsible, in this action, for the consequences of an erroneous conviction. Nor does the fact that he employed counsel to conduct the trial, on the part of the people, alter the case. It will not be insisted that the counsel, himself, would have been liable for the act of the justice in issuing the mittimus; and, certainly, the case is not stronger against the individual who employed and paid him. We are' referred to the case of Bishop v. Ely, (9 John. 294,) to show that Ney was liable. In that case, however, the defendant was the owner of the wagon, and was riding in it when it was driven against the plaintiff’s horse, and made no objection to such a use of his property; and after the injury had been done, instead of disavowing the acts of the driver of the vehicle, he showed by his acts and conversation that he had countenanced and encouraged it. In this case, as we have seen, there is nothing to connect Ney with the unlawful imprisonment of the plaintiff, so as to make him legitimately responsible for its consequences. If Ney should be held to such responsibility, his guilt must be made out by inference and presumption; and after the referee has passed upon that question, I do not think that this court can review and reverse his decision.

Again ; upon the evidence in this case the plaintiff does not show a very meritorious cause of action. He was, for aught we can see or know, guilty of the offence of which he was convicted; and if he had not been inadvertently put on his trial for an offence a grade higher than that proved again him, no action could have lain against either of the defendants. The action then rests for its foundation upon an error of the justice, which did not injure the plaintiff by preventing him from establishing any defence in his power to prove, though it rendered the conviction void. The damages of the plaintiff under the last arrest would have been assessed at a very small sum, by any jury. It is, for these reasons, not a case in which the court should, in the judicious exercise of their discretion, grant a new trial. (See Graham's Pr. 515, and the cases there cited.)

New trial denied.