Raschid v. News Syndicate Co. | Cases | Westlaw

Prior to such alleged wrongful acts of the defendant, the plaintiff says he was gainfully employed and received large compensation for his services and that by reason of the malicious prosecution by the immigration **223 officials resulting therefrom the plaintiff was prevented from pursuing any gainful occupation during the years mentioned, and also by reason of deportations during the years 1923, 1926–28 plaintiff's earning capacity was greatly diminished.

The plaintiff alleges that by reason of the facts set forth in the complaint he was compelled to expend large sums of money in *290 paying attorneys to defend him and to assert and uphold his rights and also incurred expenses for steamship and railroad fares in this country and in Europe.

The court at Special Term in granting a motion of the defendant after answer to dismiss the complaint said: ‘Motion to dismiss the complaint is granted. An action for malicious prosecution does not lie under the circumstances. While plaintiff may have a cause of action, either for libel or slander, as the case may be, the pleading is not drawn upon that theory.’

The plaintiff moved for a resettlement of the order but the court denied the motion. The plaintiff now appeals from both orders.

The plaintiff contends that the complaint sets forth facts sufficient to constitute a cause of action; that the prosecution of plaintiff for a violation of the United States Immigration Laws was of a judicial character; that the officials of the United States government service in determining the right of an immigrant to admission to the United States perform a judicial function.

The defendant claims that one of the most essential elements of an action for malicious prosecution is not set forth in the complaint in that there is no allegation that any judicial proceeding was commenced maliciously and without probable cause by the defendant against the plaintiff. It is further argued that the proceedings of the immigation service of the United States are not judicial but are administrative; that the complaint itself alleges that the defendant ‘by giving false information to the immigration officials of the government of the United States caused the said immigration officials to prosecute and arrest and deport plaintiff for alleged violations of the United States Immigration Laws on divers occasions.’ The sole charge against the defendant is that it gave false information to the immigration officials.

In Barry v. Third Avenue R. Co., 51 App. Div. 385, 386, 64 N. Y. S. 615, 616 (First Department), the court said: ‘We do not think that, upon this evidence, *291 an action for malicious prosecution can be maintained. There is no doubt that the arrest of the plaintiff made by the policeman at the request of the conductor was utterly illegal. An officer may arrest without a warrant for a crime committed or attempted in his presence, or for a felony committed by the person arrested, though not in his presence, or where a felony has been in fact committed and he has reasonable cause to believe that the person arrested committed it. Code Cr. Proc. § 177. The case did not come within this section in any of its subdivisions, because nothing criminal had been done or attempted in the presence of the officer; and the charge against the plaintiff, if it were a crime at all, was only a misdemeanor. Such an arrest would undoubtedly afford a good ground for an action for false imprisonment against the officer who made the arrest; but the mere fact of an illegal arrest and detention is not sufficient to sustain an action for malicious prosecution. The essential element of that action is that a judicial proceeding has been begun and carried on maliciously and without probable cause and has resulted in the discharge of the plaintiff. Unless the arrest is followed by some sort of a judicial proceeding there can be no malicious prosecution, and the plaintiff must seek his remedy in an action for false imprisonment. (Brown v. Chadsey, 39 Barb. 253; Newell Mal. Pros. 10; Cooley Torts [2d Ed.] 195, 208; Murphy v. Martin, 58 Wis. 276, 279 [16 N. W. 603].)’

In Drew v. Potter, 39 Vt. 189, the court held that the essential ground of the action on the case for a malicious prosecution is the institution of proceedings against the plaintiff in some court of law, **225 and without probable cause; that a legal prosecution has been commenced should appear affirmatively in the declaration; an averment of a charge and an arrest upon the charge and an acquittal after ten days' imprisonment without any mention of any court, justice, or prosecuting officer, any process, precept, or warrant, and without profert of the record of any judicial tribunal, does not amount to an averment of a prosecution or judicial proceeding, and a declaration in case for a malicious prosecution containing no more is insufficient. In that case, the court said: ‘* * * A charge and an arrest do not amount to a prosecution. This action lies only when a legal prosecution, a judicial proceeding, has been *292 maliciously, and without probable cause, instituted against the plaintiff, and has been terminated in the plaintiff's favor.’

In Sanders v. Davis, 153 Ala. 375, 44 So. 979, the Alabama court held that a complaint for malicious prosecution must allege a judicial proceeding, instigation by defendant, want of probable cause, malice, termination of the proceeding favorably to plaintiff, and damages. It also held that a count which avers merely that defendant caused plaintiff to be arrested under a charge made verbally to a policeman is a count for false imprisonment, and not for malicious prosecution.

In Burns v. Erben, 26 How. Prac. 273, the court (New York Superior Court) held that where a complaint is susceptible of no interpretation other than a charge of illegal arrest, detention, and restraint of liberty, the action is one of false imprisonment and not of malicious prosecution.

The court, at page 276 of 26 How. Prac., said:

‘The language of the complaint is susceptible of no other interpretation than a charge of illegal arrest, detention and restraint of liberty. The action is one of false imprisonment, therefore, and not of malicious prosecution, which is a species of slander or libel, leading to peculiar injury, to wit: arrest by process of law. Undoubtdly in the latter case the plaintiff is to make out the negative, to wit: a want of probable cause, but slight evidence only is sufficient for the purpose. * * *

‘I do not find evidence enough to implicate the defendant Erben in the arrest. He merely disclosed what he knew, and only expressed an opinion that there was enough of suspicion against the defendant to have her examined. He did not request or urge any arrest, but left it to the officer at the station house to decide on its propriety. Nor did he make any charge. Such officer appeared to exercise the authority given him by law of arresting persons that he suspected.’ See, also Ragsdale v. Bowles, 16 Ala. 62.

**226 The defendant may have been requested to furnish information and have complied with the request. That is not the instigation of a judicial proceeding nor a ground for holding a person for malicious prosecution. The elements which make up an action for malicious prosecution are absent. The plaintiff may have some other form of action but not the one he seeks to enforce. The Special Term properly dismissed the complaint.

The orders should be affirmed with $20 costs and disbursements.

*294 Orders affirmed with $20 costs and disbursements. Order filed.