This recovery is for damages in discharge of a duty laid on a policeman by the city charter. Suspicion was not only aroused by seeing plaintiff accost three different men that evening, but the officer in plain clothes was hirnself solicited. Therefore, he needed no warrant, as might be required for a misdemeanor, out of his view. He could not let plaintiff escape because there was no night court for speedy arraignment.
Is such an officer henceforth to fail in his duty in view of the possible impression a woman of good appearance may subsequently make upon a civil jury?
Referring to the Statute of Winchester (13 Edw. I, Stat. 2, c. 4), authorizing arrest of suspicious persons at night, Hawkins’ Pleas of the Crown says: “It is holden that this statute was made in affirmance of the common law and that every private person may by the common law arrest any suspicious night-walker, and detain him till' he give a good account of himself, as hath been more fully shewn in the precedent chapter, section twenty.” (Vol. 2 [8th ed.], p. 129, § 6.)
Authority to arrest with or without process is conferred on a village constable (Village Law [Consol. Laws, chap. 64; Laws of 1909, chap. 64], § 338; Village Law [Gen. Laws, chap. 21; Laws of 1897, chap. 414], § 319, as amd. by Laws of 1899, chap. 217; Village Law [Laws of 1870, chap. 291], tit. 8, § 19. *331See Roderick v. Whitson, 51 Hun, 620), and on policemen of a city (N. Y. City Police Courts’ Act [Laws of 1860, chap. 508], § 20; re-enacted in Consol. Act [Laws of 1882, chap. 410], § 1458; Greater N. Y. Charter [Laws of 1897, chap. 378; Laws of 1901, chap. 466], §§ 311, 315, as amd. by Laws of 1914, chap. 455; Id. § 337).
I find no controlling authority for this affirmance. In Carson v. Dessau, cited, the defendant was not an officer. The court expressly reserved the question “ whether or not the officer was liable ” (p. 448). The other Court of Appeals authority, Snead v. Bonnoil, a charge of felony, turned on defendant’s belief that a felony had been committed. On the other hand, an instruction “ the policeman was liable unless the plaintiff was guilty ” (in line with the opinion of the majority here) was held error. (Schultz v. Greenwood Cemetery, 190 N. Y. 276, 282.)
Jenks, P. J., concurred.
Judgment and order affirmed, with costs.