(dissenting). I am unable to concur in the affirmance of this judgment. The action is for false imprisonment, the charge against the defendants being that they (the defendants) “maliciously, and with intent to injure the plaintiff, by force compelled plaintiff to go with them to the central police office or headquarters, situate in said city of New York, and there imprisoned this plaintiff, and then and there detained him, restrained of his liberty for the space of forty-eight hours, or thereabouts, without reasonable cause, and without any right or authority so to do.” The defendants, who were police officers of the city of New York, denied this allegation of the complaint, and alleged that they saw the plaintiff enter a pawnshop upon Sixth avenue with a large bag in his possession, which contained a large quantity of silverware; that they asked the plaintiff to explain where he received the silverware and bag, which the plaintiff refused to do; that they took the plaintiff .to police headquarters to make a proper and satisfactory explanation to the defendants’ superior officers; that the defendants then found concealed in the plaintiff’s hip pocket a six-barrel revolver, and found in the satchel which the plaintiff carried 83 pieces of silverware; that on the morning of the 9th day of November, 1893, the day following, the plaintiff was arraigned before a police justice, who remanded him for examination; that on the morning of the 10th of November, 1893, the plaintiff was taken before the police justice, and bailed in the sum of $300, upon the charge that the .plaintiff was carrying a concealed weapon; that such proceedings were thereafter had that at the court of special sessions, on the 28th day of December, 1893, the plaintiff was found guilty.as charged, and fined $10; and that the defendants, having reasonable cause to suspect that the plaintiff was committing a felony, arrested and brought him before Police Inspector McLaughlin at headquarters, there to be dealt with according to law. From the evidence of the plaintiff, it appeared that he was arrested on the night of the 9th of November; that when the defendants took the plaintiff to police headquarters he was taken before Police Inspector McLaughlin, and was subsequently searched by a police sergeant in charge, and a weapon found upon him. It also appeared from the blotter at police headquarters that the plaintiff was arrested for a violation of a corporation ordinance, and that he was held, and bailed on November 10th in the sum of $300. There was a. note to this entry on the blotter which stated that the plaintiff was arrested on “suspicion of having stolen a valise containing a quantity of silver-plated ware, which he was trying to dispose of when arrested. The officers were unable to find the owner of the plate, and charged him with violation of corporation ordinance, he having a loaded revolver *558in his possession when arrested.’'" Upon the plaintiff’s own testimony, he was guilty of a misdemeanor when arrested. The pistol was found in his pocket, and there is a statement in the testimony of the defendants, which is not contradicted, that when the plaintiff was arrested he put his hand to his hip pocket, and that one of the officers then said to the other that the plaintiff had in his possession a firearm. At the end of the plaintiff’s case counsel for the defendants moved to dismiss the complaint, on the ground that no facts had been shown sufficient to constitute a cause of action. This motion was renewed at the end of the case, and was denied, and the defendants excepted. I think this motion should have been granted. As before stated, the action is for false imprisonment. The very foundation of an action for false imprisonment is an illegal detention. 12 Am. & Eng. Enc. Law (2d Ed.) 726. That “if the detention, therefore, is not positively illegal, no action for false imprisonment can be maintained, no matter at whose instigation the act was done, or by what motive actuated”; and “an arrest made without warrant by an officer of the law is not a false imprisonment, * * if, in the presence of the officer arresting, a misdemeanor had been committed by the person taken into custody.” Id. 740. By section 277 of the consolidation act (chapter 410, Laws 1882), it is provided that:
“The several members of the police force shall have power and authority to immediately arrest, without warrant, and to take into custody any person who shall commit, or threaten, or attempt to commit in the presence of such member, or within his view, any breach of the peace or offense prohibited by act, of the legislature, or by any ordinance of the city.”
These defendants, being thus authorized to arrest the plaintiff' without warrant, if, in their presence, he violated an ordinance of the city of Hew York, or committed a misdemeanor, arrested the plaintiff when violating such an ordinance, and when guilty of a misdemeanor, in having in his possession a concealed weapon. The plaintiff when arrested was guilty of a crime, and, by express-provision of the consolidation act, the defendants were authorized to arrest him. Yet it was held in the court below that the arrest and detention were illegal; and this, in the face of the fact that the plaintiff was held by the magistrate before whom he was taken,, and was subsequently tried by a court of competent jurisdiction for the offense, and convicted, which conviction, upon appeal, was affirmed. This is put upon the ground that the defendants arrested the plaintiff for another offense, which was unjustified. In the view that I take of this question, it is unnecessary to consider whether the defendants were justified in arresting the plaintiff under the circumstances detailed by the plaintiff in his testimony. The rule is well settled that an arrest by an officer of the law is not a false imprisonment if the officer arresting has reasonable ground to believe that a felony has been committed, and that the person arrested was the guilty party. Am. & Eng. Enc. Law (2d Ed.) 740. I am not prepared to say that where a police officer sees a party with a bag full of w'hat appears to be silverware going into a pawnshop after dark, and trying unsuccessfully to pawn the-*559silverware, he has not the right to take the person into custody upon the refusal of the person to explain how he came in possession of the articles which he had endeavored to pawn. The circumstances were certainly suspicioús. The welfare of the community and the safety of its citizens depend upon the active vigilance of the police in watching for lawbreakers, and I cannot but think that a police officer is justified in calling upon a person acting under the circumstances detailed to explain his possession of the articles which he had sought to pawn, and, in the absence of a sufficient explanation, to take the person into custody pending an examination; but in this case it is not necessary that we should determine that question, because here the defendant, when arrested, was actually engaged in violating a corporation ordinance, and was committing a crime by having in his possession this concealed weapon. It seems to me that it was entirely immaterial upon what ground the plaintiff was arrested, or with what offense he was charged by the officer when arrested. When he was arrested he was committing a crime for which he was duly convicted by á court of competent jurisdiction, and punished. That crime was committed in the presence of an officer, and, even if the officer had no knowledge of it at the time of the arrest, the arrest cannot be illegal if, when arrested, the person arrested was actually committing a crime for which he was afterwards held and convicted. There is nothing in the statute or the rule of law that requires that the officer shall see the offender commit the crime. It is enough if committed in liis presence. That this plaintiff was held at police headquarters for the crime of carrying this concealed weapon appears from his own evidence and from the entrain the police blotter, but I do not see how this appellant could be held chargeable for the detention of the plaintiff at police headquarters. The defendants arrested the plaintiff, took him to police headquarters, and delivered him over to their superior officer, who caused him to be searched, and upon such examination he was found to have committed a crime. The inspector ordered him to be detained, and from the record upon the blotter it would appear that he was held for this offense, but any claim that the arrest was illegal is answered by the fact that he was shown to have been committing a crime when arrested. Of course, when an officer attempts to arrest a person without á warrant, the burden is upon him to show that at the time of the arrest the person was actually engaged in the commission of the crime, but when that fact appeared, whether the officer had at the time of the arrest satisfactory evidence of it or not, the act of the officer in making the arrest is not illegal. The case of Murphy v. Kron, 8 N. Y. St. Rep. 230, is not in point. In that case the defendants were police officers, and attempted to arrest the plaintiff on a warrant for stealing a dog of the value of $10. The arrest was at night, when no direction had been made for the execution of the warrant at night. It appeared that after the defendant had rapped at the outer door of the house some conversation took place between the plaintiff and the defendants, and that the defendants demanded admit*560tance, stating that they were officers of the law, and thereupon the plaintiff fired off a revolver in the house. The defendants asked the court to charge that, if the plaintiff aimed or discharged the pistol at or towards any human being, that constituted a crime, and for that the defendants were justified in arresting the plaintiff. This request was refused, and an exception taken; but in that case no charge was made by the officers before the magistrate, or at any other time, that the plaintiff had committed a crime in discharging the revolver, and the decision of the court was expressly put upon the ground that after they had taken the plaintiff to the station house the warrant was returned indorsed thereon that the plaintiff had been arrested “by virtue of the within warrant,” and that no complaint was made against the plaintiff upon any other crime. Upon those facts, it was held that the request was properly refused. No authority was cited by the court, and that case cannot be considered as an authority for holding that the arrest was illegal, where the person arrested was actually committing a crime when arrested, and a charge was subsequently made against him for the crime, and he was held and convicted on such charge. It has been held that it is not a false imprisonment Where a person is convicted before a trial justice on two distinct offenses, and is committed to the house of correction under two warrants, one legal and the other illegal, and held in custody under both warrants during the whole time of his imprisonment (Doherty v. Munson, 127 Mass. 495); and it has also been held, in a case of detention for nonpayment of taxes partly illegal, that it is not to be presumed that the plaintiff was detained until the unlawful excess was paid. Being rightfully held for part, the detention was justifiable. Meserve v. Folsom, 62 Vt. 504, 20 Atl. 926.
I think that this plaintiff was properly arrested for the commission of the offense of carrying concealed weapons, that that arrest was not illegal, and that his detention, under the circumstances, was not illegal, and that the complaint should have been dismissed.
VAN BBUNT, P. J., concurs.