(dissenting). I dissent and vote for affirmance on the ground that denial by the court below of the defendant’s motion to amend the answer by setting forth four defenses, two “ distinct ” and two “ partial ” did not constitute reversible error. The primary rule applicable here seems to me to be that which confines the appellant to the theory upon which the cause was tried and under which we are not required to pass upon questions not raised below. This cause was tried below on the theory of false arrest and imprisonment and all the evidence material to that issue offered by defendant was ultimately received by the court below, although previously it had been excluded.
I agree the language of the complaint, liberally construed, was broad enough to include a charge of malicious prosecution, and if the case were tried on that theory, the amendment should have been allowed. But we are only called upon to determine whether the refusal of the court below to grant defendant’s motion made at the trial, which was confined to the limited theory of false arrest and imprisonment, constituted prejudicial error. On the issue of false arrest and imprisonment there was no question of probable cause, the arrest having been made without a warrant by a private citizen and not by a peace officer, *633Gearity v. Strasbourger (133 App. Div. 701) per Laughlin, J., states the rule and is authority for the above. The amendment proposed was (1) the “ distinct ” defense that upon arraignment and hearing before a city magistrate plaintiff was held for action by the Grand Jury, and same constitutes probable cause for the arrest and detention of plaintiff; (2) for a second “ distinct ” defense, the denial that defendant falsely or maliciously, or without probable cause, caused plaintiff’s arrest; (3) for a “ partial ” defense defendant believed he had reasonable and just canse in believing plaintiff guilty of the crime of grand larceny, and in arresting plaintiff, as alleged by plaintiff, and defendant was not actuated by malice against plaintiff, but merely by the purpose and intent of punishing the wrongdoer, and (4) for a “ partial ” defense in mitigation of any damages, all of the above was realleged and that defendant acted “ in good faith believing plaintiff was guilty of the crime of grand larceny as charged in the complaint before the city magistrate * * Obviously, the motion in respect of the first two “ distinct ” defenses, by which it can only be assumed defendant meant “ complete ” defenses, was properly denied by the Trial Justice in this action for false arrest and imprisonment.
The Trial Justice, in my opinion, also properly denied the amendment in respect of the “ partial ” defense (designated above as 3) of reasonable and just cause in making the arrest. Many authorities support this view. (See McLoughlin v. New York Edison Co., 252 N. Y. 202.) Apparently, these defenses were proposed to meet the purported claim of malicious prosecution. The sections of the Civil Practice Act invoked by defendant are sections 261, 262 and 339. We are not concerned with sections 338 and 338-a, which provide special rules applicable to libel and slander. Cases in respect of such sections do not seem to be particularly helpful here. Section 339 of the Civil Practice Act reads as follows: “ Proving mitigating circumstances in action for wrong. In an action to recover damages for a personal injury, or an injury to property, the defendant may prove, at the trial, facts not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff’s damages, if they are set forth in the answer, either with or without one or more defenses to the entire cause of action. A defendant, in default for want of an answer, may prove facts of that description upon a reference or inquiry to ascertain the amount of the plaintiff’s damages.”
*634The provisions of the last part of this section are applicable upon assessment of damages taken upon default of an answer. The provisions of the first part of the section and those of sections 261 and 262 appear to be intended to govern only when a pleading is served. (McClellan v. Climax Hosiery Mills, 252 N. Y. 347, revg. 226 App. Div. 664.) But these sections do not appear to have changed the definition of mitigating circumstances. In McClellan v. Climax Hosiery Mills (supra, pp. 355-356, 357, 358), Cabdozo, Ch. J., in his concurring opinion stated: ‘ ‘ The rule came to be established that * *. * mitigating circumstances * * * were those that bore upon a defendant’s liability for punitive or exemplary damages by reducing or softening the moral or social culpability attaching to his act, or upon his liability for actual damages by showing that, though suffered, they had been partially extinguished. For illustration, a defendant might wish to show that in publishing a libel he had acted without malice, upon credible reports, and in the belief that what he was writing was the truth. To gain for himself the benefit of these mitigating circumstances in reduction or extinguishment of punitive damages, there was need for him to plead them (Wachter v. Quenzer, 29 N. Y. 547; Spooner v. Keeler, 51 N. Y. 527, 535; Bradner v. Faulkner, 93 N. Y. 515; Gressman v. Morning Journal Assn., 197 N. Y. 474). On the other hand, there could never be ‘ mitigating circumstances ’ to cut down the recovery of damages actually suffered unless afterwards extinguished pro tanto by payment or release (Gressman v. Morning Journal Assn., supra; Lynch v. Figge, 194 App. Div. 126, 132). Matter tending to the disproof of actual damages, or damages claimed to be actual, was not matter in mitigation within the meaning of the statute, and might be proved by a defendant though not mentioned in the answer (Wandell v. Edwards, 25 Hun, 498; Gulerette v. McKinley, 27 Hun, 321; Young v. Johnson, 46 Hun, 164; 123 N. Y. 226; Osterheld v. Star Co., 146 App. Div. 388, 394; Walmsley v. Kopczynski, 202 App. Div. 104,108). The doctrine of these decisions is in harmony with the rule that an allegation of a complaint as to a plaintiff’s- general damages is not the subject of traverse in an answer, and may be disputed by a defendant though not covered by a denial (Howell v. Bennett, 74 Hun, 555, 558, and cases there cited). A'fortiori it may be disputed without plea in mitigation. * * * The question now is whether section 26.2 of the Civil Practice Act has brought with it the need for a new and different definition of ‘ mitigating circumstances.’ The provisions of that section so far as rele*635vont are as follows: ‘ A partial defense may be set forth [in an answer], but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. * * * Matter tending only to mitigate or reduce damages is a partial defense, within the meaning of this section.’ The sentence last quoted was not in the earlier codes.
“ I see no reason to believe that this section has changed the definition of ‘ mitigating circumstances.’ Mitigating circumstances are not those that reduce the actual damages by showing that they were not suffered. Mitigating circumstances are those that affect the basis for an award of exemplary damages, or reduce actual damages by showing, not that they were never suffered, but that they have been partially extinguished (cf. Gabay v. Doane, supra [77 App. Div. 413]).”
Confining inquiry to the proposed amendment by way of partial defense, last above referred to, and also designated by the numeral 4, it is my = opinion that what is attempted to be pleaded are not mitigating circumstances within the above definition. In the first place, that partial defense is alleged to be in mitigation of any damages and sought to repeat and reallege all of the matters attempted to be pleaded, erroneously, I believe, as two complete defensés and a partial defense, and then sought to allege that11 said acts were performed and done by the defendant in good faith, without malice, and honestly, and in good faith believing the plaintiff was guilty of the crime of grand larceny, as charged in. the complaint, before the city magistrate '* * *.”
In respect of compensatory damages, as pointed out above and agreed to, I believe, in the majority opinion, good faith, absence of malice and the existence of reasonable and probable cause may not be shown to defeat the action for, or to reduce the actual damage sustained by reason of the false arrest and imprisonment.
In McLoughlin v. New York Edison Co. (252 N. Y. 202, 205, supra) the Court of Appeals, through Kellogg, J., said: “ Private persons may not make an arrest except for a crime committed in their presence, or for a felony which has been committed although not in their presence. (Code Crim. Proc., § 183.) Where the detention is illegal an action for false imprisonment will lie, without regard to the innocence of the defendant in respect to his intentions. (Snead v. Bonnoil, 166 Y. Y. 325.) 1 It follows that a cause of action for false imprison*636ment accrues whenever a person is arrésted and detained by one not an officer, acting without a warrant, when no crime has in fact been committed by him, no matter with what good faith the party who caused the arrest acted.’ (Johnston v. Bruckheimer, 133 App. Div. 649, at p. 652.) ”
The circumstances proposed to be pleaded by the amendment in the first place are not facts tending to show that what defendant did was done without malice. In addition they are not allegations of facts such as would mitigate against plaintiff’s claim of punitive damages by affecting the basis therefor, i.e., malice, wantonness, willfulness or oppression, or that actual damages have been reduced or partially extinguished after they had been suffered or had accrued. (See McClellan v. Climax Hosiery Mills, 252 N. Y. 347, supra.) What defendant alleges and sought to set up are facts and circumstances such as that plaintiff was arraigned before and after hearing was held by the magistrate which he hoped would amount to justification or, failing in that, would be considered as mitigation in reduction of any damages.
Finally, as all of defendant’s evidence to support his defense that the crime' charged had been committed and by plaintiff who, upon arraignment, was held by the Magistrate was accepted by the Trial Justice and by him submitted to the jury for consideration, in reaching the verdict, no reversible error is shown. Under the circumstances receipt of the evidence even under the general denial would render harmless any possible error in denial of the motion to amend.
The defendant’s general denial should go merely to the fact of an arrest and imprisonment and defendant’s participation in it, and a partial defense setting up facts is ^proper only in mitigation of punitive damages. As the facts claimed to be mitigating circumstances here were received under the general denial, any error in refusing to allow the amendment to plead mitigation would not seem to warrant a reversal of the judgment. Furthermore, the partial defense is insufficient on its face in that the allegations were in mitigation of any damages, which is nothing more than a denial of damages and has no place in an affirmative defense or partial defense (Jones v. Pickard, 101 Misc. 117, 123, and cases cited. See, also, Brown v. Chadsey, 39 Barb. 253).
Hecht, J., concurs with Shientag, J.; Hammer, J., dissents in opinion.
Judgment reversed, etc.