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App. Div.]

First Department, March, 1910. is that the column on the bill of lading in which the weight is written is headed “Weight. Subject to correction,” and since the weight had only apparently been estimated and might be increased or reduced, it may have been deemed more practicable to fix the valuation at so much per 100 pounds. That, however, is no indication of an intent to subdivide such a cargo into 100 pound lots, where it was not so divided when delivered for shipment. We think that it was the intention of the carrier to afford the shipper the benefit of a reduced rate on condition that a special valuation of the cargo be agreed upon by which the liability of the carrier would be limited. It has long been the established rule that it is competent for a common carrier to make such a contract with the shipper. (Hart v. Pennsylvania R. R. Co., 112 U. S. 331; Zimmer v. N. Y. C. & II. R. R. R. Co., 137 N. Y. 460; Tewes v. North German Lloyd S. S. Co., 186 id. 151; Rosenthal v. Weir, 170 id. 148; Greenwald v. Weir, 130 App. Div. 696.) The facts clearly distinguish the case at bar from those in which the contract of shipment has been construed as showing an agreement that the valuation of goods consigned shonld be deemed both for the purpose of fixing the carrying charges and limiting the liability to an amount speci. fied in the bill of lading for each separate case or package, of which Brown v. Cunard S. S. Co. (147 Mass. 58) and Pearse v. Quebec S. S. Co. (24 Fed. Rep. 285) are examples, and that the like valuation of animals should be deemed for like purposes a given price per head, of which Hart v. Pennsylvania R. R. Co., Zimmer v. N. Y. C. & H. R. R. R. Co. (supra), Winslow Bros. & Co. v. Atlantic Coast Line R. R. Co.(79 S. C. 344), Starnes v. Railroad (91 Tenn. 516) and Nelson v. Great Northern R. Co. (28 Mont. 297) are instances.

We are of opinion, therefore, that it was not incumbent on the plaintiff to show the weight of the goods damaged or destroyed, and that she was not limited in her right to recover to five dollars per hundredweight of that part of the goods weighed separately. It is unnecessary, therefore, to decide whether if the bill of lading required the construction for which the appellant contends it would be valid or whether it would be void as contrary to public policy, and, therefore, we express no opinion on that question.

We are also of opinion that the evidence was sufficient to sustain

First Department, March, 1910.

[Vol. 137. the verdict on the question of the negligence of the appellant. Evidence was adduced in behalf of the plaintiff tending to show that the goods were properly prepared for shipment and properly loaded into the car, and that appellant's agent inspected the manner in which they were loaded and accepted them for shipment, and that they were taken from the car at their destination in a seri. ously damaged condition, which presumptively would not have occurred if they had been transported and stored with due care. (Hoffberg v. Bumford, 88 N. Y. Supp. 940.)

It follows, therefore, that the determination of the Appellate Term should be affirmed, with costs.

INGRAHAM, P. J., Clarke, Scorr and MILLER, JJ., concurred. Determination affirmed, with costs.

BERT ADAMS, Appellant, v. Adolph SCHWARTZ, Respondent.

First Department, March 11, 1910.

Pleading – false imprisonment and malicious prosecution – counter

claim for trespass — posting bills on land of another without permission – arrest without warrant -- burden of proof - innocence of plaintiff-justification – arrest by police officer on his own responsibility denial of arrest and counterclaim founded thereon.

A defendantysued for false imprisonment and malicious prosecution for causing the plaintiff's arrest cannot counterclaim damages caused by the trespass of the plaintiff in posting advertisements upon the defendant's property without permission, although the arrest was made because of the plaintiff's refusal to desist and leave the premises when ordered to do so and because he used abusive language with an intent to provoke a breach of the peace. This, because the transactions set forth in the complaint are the arrest and the acts constituting the malicious prosecution, while the tort set forth in the counterclaim is the trespass on real property. The two cannot be said to arise out of the same transaction within the meaning of the sections of the Code of Civil Pro

cedure governing countercla, ms. The unauthorized posting of advertisements on the real property of another without permission, and a trespass upon such property within the bounds of

a city or village, is a crime under sections 121 and 2036 of the Penal Law. The arrest of a person while committing an unlawful act may be made without a warrant.

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One is not liable for false imprisonment and malicious prosecution merely because he did not properly designate the crime on which the arrest and pros

ecution were based. A plaintiff suing for false imprisonment need not prove affirmatively that he was not guilty of a crime, that being presumed. The burden is on the defendant to

justify the arrest. One is not liable for false imprisonment where he in no way participated in an

arrest made by a police officer on his own responsibility. S hasato A defendant cannot deny that he caused the imprisonment of the plaintiff and at

the same time interpose a counterclaim for a trespass on which the arrest was made. Authorities on counterclaims to actions for tort collated and discussed, per

LAUGHLIN, J.

APPEAL by the plaintiff, Bert Adams, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of November, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff's demurrer to the counterclaims contained in defendant's answer.

Frank Walling [Harvey J. Cohen with him on the brief], for the appellant.

A. Joseph Geist [Ilenry Swartz with him on the brief], for the respondent.

Laughlin, J.:

The amended complaint contains two counts. The first is for false arrest and imprisonment and the second for malicious prosecntion. Both causes of action relate to the same arrest and prosecntion. It is alleged that on the 20th day of May, 1909, the defendant caused the arrest of the plaintiff by a police officer, without a warrant or other legal process and without probable or justifiable cause “upon the false charge of having by disorderly conduct committed a breach of the peace in that he had annoyed defendant by posting theatrical posters or bills upon a billboard attached to the premises under leasehold belonging to defendant at the corner of Amsterdam Avenue and 69th Street, in the Borough of Manhattan, City of New York," and caused him to be taken to a police station and there made said charge against him, whereby the plaintiff was restrained of his liberty one hour, and made the

First Department, March, 1910.

[Vol. 137. same charge before a magistrate that day; but that on the hearing he was exonerated and discharged from custody. The amended answer put in issue the material allegations of the amended complaint, including the arrest and prosecution of plaintiff by or at the instance of defendant. It then separately pleads with respect to each cause of action the advice of counsel in mitigation of damages, and certain facts as a separate, distinct and entire defense. These facts are, in substance, that defendant was the lessee of said premises; that on the day in question the plaintiff, without his consent and without the consent of the owner of the property, placed theatrical advertisements upon billboards attached to the wall of a building on the premises and on other portions of said wall; that defendant ordered the plaintiff off the premises, but he remained on and used threatening and abusive language “and was insulting in his behavior with intent to provoke a breach of the peace" by reason of which a breach of the peace might be and was caused; that plaintiff annoyed defendant and was in the act of committing a misdemeanor by posting the theatrical advertisements as aforesaid, and that thereupon a police officer “who witnessed the acts set forth herein arrested” the plaintiff. The defendant further pleaded with respect to each cause of action as "a further defense and by way of setoff and counterclaim” the same facts in substance, and elaborated thereon by stating that the plaintiff wrongfully entered upon the premises without permission or license from the defendant or the owner to the defendant's damage in the sum of fifty dollars. The prayer for relief contained in the answer is that the complaint be dismissed and that defendant have judgment on his counterclaim and for costs. The plaintiff in a single pleading separately demurs to each counterclainn upon the ground that it is not of the character specified in section 501 of the Code of Civil Procedure, in that it is not “a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim or connected with the subject of the action.” The most favorable inference that can be drawn in behalf of plaintiff from the facts pleaded is that the defendant caused his arrest while he was on premises of which defendant was the lessee and was in the act of posting theatrical advertisements on the walls of the building thereon; that defendant followed the arrest up and prosecuted the

App. Div.)

First Department, March, 1910. charge made against the plaintiff until it terminated favorably to the latter, and that the defendant claims that the plaintiff was guilty of disorderly conduct and was guilty of a misdemeanor in that he entered upon the premises and posted the advertisements without the consent of the defendant or of the owner, and was also guilty of an unlawful trespass.

It is quite likely that the evidence which will sustain the plaintiff's causes of action will necessarily defeat the defendant's counterclaim, and vice versa, for if the plaintiff entered upon the premises with the consent of the defendant and of the owner of the property, he was there lawfully and the defendant would be liable for false arrest, and, perhaps, for malicious prosecution; and if, on the other hand, plaintiff did the acts without the consent of the owner and of the defendant, he was guilty of a crime and would be liable to the defendant for the damages caused by the trespass. Our attention has not been drawn to any statute and no ordinance is pleaded making the acts with which the plaintiff was specifically charged according to the allegations of the complaint a breach of the peace ; nor has our attention been drawn to the statute which it was supposed plaintiff lad violated, but we presume that it was intended to make the charge under sections 1458 and 1459 of the Consolidation Act (Laws of 1882, chap. 410) which relate to disorderly conduct which tends to a breach of the peace, and which were continued in force by section 1610 of the Greater New York charter. (See People ex rel. Frank v. Davis, 80 App. Div. 453 ; People ec rel. Smith v. Van De Carr, 86 id. 11; also, Greater New York Charter [Laws of 1897, chap. 378; Laws of 1901, chap. 466], $ 707, as amd. by Laws of 1905, chap. 638, and article on The Offense of Disorderly Conduct, by Magistrate House, N. Y. L. J., Feb. 23, 1910.) If, however, the facts did not constitute the crime with which plaintiff was charged, sections 121 and 2036 of the Penal Law make the acts for which the plaintiff was arrested, according to the complaint, answer and counterclaim, a crime. If the acts for which plaintiff was arrested and with which he was charged constituted a crime, I presune that the defendant would not be liable to an action for false arrest and malicious prosecution merely because the crime was not properly designated, for it is not apparent that greater dainages would be sustained for an arrest and

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