¶1This action is brought to recover damages for false imprisonment.
¶2*330The defendant Dennett on the 22d day of May, 1893, was the proprietor of an eating house on Park row, this city, and the defendant Tynan was liis manager in charge, Dennett being in California at the time.
¶3On that date the plaintiff entered the establishment and partook of food to the extent of forty cents worth, as is claimed by the defendants, but to the extent of thirty cents only as claimed by himself.
¶4On the refusal of the plaintiff to pay the additional sum of ten cents demanded, the defendant Tynan summoned an officer and caused the plaintiff’s arrest.
¶5The plaintiff was taken to a police station, where Tynan preferred a charge of disorderly conduct against him, whereupon the plaintiff paid the additional ten cents and was released.
¶6On the trial, after the opening of the case, at the close of the plaintiff’s testimony, ahd before the submission of the case to the jury, the defendants moved to dismiss the action upon the ground that there was no evidence that the arrest complained of was unlawful, which motion was denied.
¶7We think the trial justice erred.
¶8The plaintiff had a right to combine the two causes of action, one for malicious prosecution and another for false imprisonment, in one complaint. Marks v. Townsend, 97 N. Y. 590.
¶9But at the trial the plaintiff declared that the action was for false imprisonment only.
¶10It is well settled that the action for false imprisonment can only be maintained where the- arrest was unlawful and without authority of law. Cunningham v. Electric Co.. 17 N. Y. Supp. 372.
¶11As far as the complaint and evidence shows, the arrest was. lawfully effected.
¶12Without considering any of the other questions raised, the judgment appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.
¶13Cohlan, J., concurs.
¶14Judgment reversed and new trial granted, with costs to appellant to abide event.