The complaint in one count contains allegations appropriate to two causes of action, false imprisonment and malicious prosecution. At the close of the plaintiff’s case a motion was made to dismiss the cause of action for malicious prosecution on the ground that no malice had been shown, and at the close of the whole case on the ground not only that plaintiff had failed to prove malice, but that it appeared affirmatively that the facts known to the defendant, or discovered by him with reasonable care, were such as would lead a man of ordinary prudence to believe that a crime had been committed by the plaintiff.. Those motions were denied and exceptions taken.
In the charge the learned court directed a verdict for the plaintiff on the charge of unlawful arrest, in this language: “The plaintiff was unlawfully restrained of his liberty. That constitutes what is called false arrest or false imprisonment. From the time he was taken into custody until the time when he was held by the magistrate, after an examination in court, he was illegally restrained of his liberty; and for that he is entitled to fair and reasonable compensation; upon that count of the complaint there is but one question you have to consider and that is the amount of the damages.”
Plaintiff was restrained at the station house from eight until eleven o’clock at night. He was a laboring man in a feed store which was owned by the defendant. He earned thirteen dollars a week, and for doing certain janitor’s or cleaning work in another building owned by defendant he received three dollars a week. • The defendant was informed by men who occupied the budding directly opposite his feed store that plaintiff had been seen carrying away two or three bags of oats after six o’clock at night. He was positively identified by one of these men. Two other witnesses testified that he had previously taken away bags. The evidence is overwhelming, and, without doubt, sufficient to sustain the proposition that the defendant *660had probable cause and was not actuated by malice. The burden of showing want of probable cause, which rests upon the plaintiff, was not only not sustained but the fact of probable cause was completely established, so that it was an error of law not to dismiss that cause of action.
Technically there was a false arrest, because plaintiff was charged with a misdemeanor' not committed in the presence of the officer or of the defendant, Mr. Garr. The defendant in his answer admits that he caused the arrest. The allegation is: “The defendant * * "x" by reason of the premises had reasonable and probable cause of suspicion that the plaintiff was guilty of the larceny of two or more bags of oats from his warehouse and therefore gave the plaintiff into the custody of a police officer in order to carry and convey him before a proper magistrate to be there dealt with according to law.” What he should have done, of course, was to go before a magistrate and get a warrant. There was then a technical false arrest and imprisonment until the hearing before the magistrate, where plaintiff was held in $500 for trial at Special Sessions, where he was acquitted. But the verdict is excessive upon that count. There was no evidence to sustain the verdict upon the count of malicious prosecution.
The judgment and order appealed from should be reversed a.nrl anew trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the verdict to $100, in which event the judgment as so modified and the order appealed from are affirmed, without costs to either party.
Ingraham, P. J., McLaughlin, Laughlín and Scott, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce verdict to $100, in which event judgment as so modified and order affirmed, without costs. Order to be settled on notice.