[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 93 The complaint in this action alleges two causes of action.First, for false imprisonment in procuring plaintiff's arrest without a warrant for the alleged offense of stealing and carrying away money of this defendant by trick and device;Second, for malicious prosecution in preferring a charge for the same offense.
There was sufficient proof upon the trial to establish the fact that the plaintiff was illegally arrested without a warrant, and we think there was no error in the refusal of the judge to dismiss the complaint as to this cause of action. The motion to dismiss was based upon the ground that a felony had been committed, and that there was reasonable ground to suspect that the plaintiff was the guilty party, and under these circumstances that no warrant was necessary to make the arrest. The evidence showed that the defendant was a director in the Repauno Chemical Works situate in New Jersey; that a person, whom he supposed was the plaintiff, came to the defendant's house in New York and represented that he had been sent there by the superintendent of the works to inform him that the glycerine factory at the works had exploded, destroying the lives of two men and the factory also; he stated that he had not received money enough to pay his expenses and that he required $4 or $5 to take him back, and defendant, believing his statement, gave him $5 to pay his expenses. The statement made to defendant was false, and the defendant, caused plaintiff's arrest in consequence thereof. The appellant claims *Page 95 that the offense was larceny, and that the money was taken from the defendant with a felonious intent and converted to his own use by the plaintiff. To constitute the crime of larceny there must be a trespass committed and a felonious intent, and without these elements no such offense can be made out. We think that the offense proven was not one of larceny, but merely one of false pretenses, and came within the provisions of section 58, 3 Revised Statutes (6th ed.), page 948, which declares that "every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any other false pretense, * * * obtain from any person any money * * * upon conviction shall be punished," etc. In Fassett v.Smith (23 N.Y. 252) it was held that a violation of the provisions of the statute cited was not a felony either at common law or under the statute. The distinction which exists between larceny and false pretenses is a very nice one, but no case has gone to the extent of holding that money obtained in the manner and under the circumstances shown in this case constitutes the crime of larceny. The money here was voluntarily parted with by the owner for the purpose of being expended in the payment of the expenses of the person who obtained it. It was not to be kept for the benefit of the owner or to be returned to him, and no right was retained to the same. The most that can be said as to the owner's right to the money is that there was a promise to pay back to him the same amount.
It was procured by direct artifice or device within the statute, and no trespass was committed against the owner. Neither can it be said, we think, that in law there was an animusfurandi on the part of the person procuring the money. The case of Loomis v. People (67 N.Y. 322; 23 Am. Rep. 123) is relied upon by the counsel of both sides, but we think it falls far short of holding that the obtaining of money upon a false representation, with an absolute surrender of the title to the same, constitute the crime of larceny. In that case the money was parted with for a specific purpose and without any intention of parting with the title to the same. It is there laid down that, "even although the owner is induced to part with *Page 96 his property by fraudulent means, yet if he actually intends to part with it and delivers up possession absolutely, it is not larceny;" and further it is said "it will be observed that the intention of the owner to part with his property is the gist and essence of the offense of larceny and the vital point upon which the crime hinges and is to be determined." Within the rule laid down it is apparent that there was an intention to part absolutely with the money in the case at bar, and it, therefore, cannot be claimed that the case cited sustains the position contended for by the appellant's counsel. In the case last cited it is stated that if a person animus furandi avail himself of the temporary possession of property, obtained by consent for a special purpose, to convert the property in the thing to himself and defraud the owner thereof, he certainly has not the consent of the owner. This has no application to a case where the property has been parted with absolutely, as is the fact here.
In the other cases cited by the appellant's counsel there was a temporary parting with the property for some specific purpose and they are not directly in point.
As no larceny was committed it is not necessary to consider the question as to whether petit larceny is a felony.
The refusal of the court to dismiss the complaint as to the second cause of action was not, in view of all the facts, such a ground of error as would authorize a reversal of the judgment.
In this respect the judge left it for the jury to say whether there was probable cause, and he charged them "that if they believed that Mr. Turck was under the honest supposition that this was the culprit who had taken his money, and it was a reasonable supposition, that it was such a conviction that a man of ordinary prudence would have entertained, and that there was reason and probable cause for Mr. Turck's supposing that this was the culprit, that would be the end of the plaintiff's action as to the second cause of action." We think that as the second cause of action was distinct from the first, the jury could not have been prejudiced by the submission of the same to them in the form in which it was presented by the judge, and that its dismissal would not have aided the defendant in *Page 97 reference to the first cause of action. The jury having found in favor of the defendant in reference to this branch of the case, it may be assumed that they disregarded all matters relating to the second cause of action in disposing of the first.
By their verdict they found no want of probable cause in making the charge and that it was not made with a malicious intent, and it would be going very far to hold that they permitted either of these questions to influence their verdict in reference to the first cause of action. They were merely called upon under the judge's charge to assess the damages as to the first cause of action, if they found the second was not sustained, and it is not apparent how any injury could have accrued to the defendant by the refusal of the judge to dismiss the complaint upon the ground referred to. It being manifest that the jury could not have been prejudiced even if the judge erred in regard to the motion to dismiss the complaint as to the second cause of action, we are not called upon to reverse the judgment upon that ground.
In regard to the damages the case does not disclose that any point was made as to the right of the plaintiff to recover for punitive or exemplary damages and it is not presented by any exception upon the trial. This court has no authority to review the question as to excessive damages, and we are, therefore, not called upon to determine whether the damages recovered by the plaintiff were larger than were warranted by the testimony.
There was no error on the trial and the judgment should be affirmed.
All concur.
Judgment affirmed. *Page 98