How to Investigate Animal Cruelty in NY State – A Manual of Procedures

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Appendix I

Selected Case Law – Related to Animals

These cases may be of interest to you and helpful to the Assistant District Attorney assigned to the case. We have identified the sections of Agriculture & Markets law to which the cases apply, and provided a synopsis of each case and specified its cite.

Section 353 of NYS Agriculture & Markets Law:

Provides that a person is guilty of a Class A misdemeanor when they overdrive, overload, torture or cruelly beat or unjustifiably injure, maim, mutilate, or kill any animal, wild or tame, and whether belonging to themselves or others. Further, a person is guilty of a Class A misdemeanor when they deprive any animal of necessary sustenance, food or drink, or neglect or refuse to furnish it such sustenance or drink, or if they cause, procure, or permit any animal to be so treated.

The following cases are presented as samples of how this law has been interpreted and applied.

People v. Basile, 25 NY3d 1111, 1113 (2015) Culpable state of mind not necessary for cruelty conviction: In this case, a dog was found in an emaciated and dehydrated condition, also having been bitten by flies and infested with fleas. The owner admitted to being unable to afford the dog and that he had not been feeding the animal. Defendant appealed his conviction of violating Section 353, claiming that the trial court erred by failing to instruct the jury that a conviction required proof of a mens rea, a culpable mental state. The Court did not address whether such proof was required, instead holding that even if a culpable mental state was an element of the offense, the defendant would not be entitled to relief due to the circumstances of the case. The Court of Appeals affirmed the decision of the lower court, holding that even had the instructions been given to the jury, the outcome would not have changed.

People v. Warner, 194 AD3d 1098, 1105 (3d Dept. 2021) Culpable state of mind not necessary for cruelty conviction: Incidental to an altercation between defendant and other members of a motorcycle club, a dog in a nearby van (belonging to one of the parties to the dispute) was injured by gunshots to its head. Defendant claimed he did not violate Section 353 because he did not know the dog was in the van, in spite of the dog being in his line of sight and barking during the shooting. The Appellate Division Court (citing the Court of Appeals affirmance in Basile) held that there was “no requirement that the person have a culpable mental state of mind” or an intent to injure the animal to be guilty of a violation of Section 353 and affirmed the lower court decision.

Mudge v. State, (271 App. Div. 1039), 45 New York Supplement, 2d Series, 896, Court of Claims, New York, Jan. 13, 1944 Probable cause for arrest: The Court found that law enforcement officials could reasonably infer neglect from an animal’s circumstances and thus have probable cause to arrest the defendant. Believing that some farm animals were being neglected, State Police and a representative of Schenectady County Humane Society Superintendent, visited claimant’s farm. The officials received claimant’s permission to visit the barn where such stock was stabled. Inspection of the barn revealed the main door was so frost-swollen that it could not be closed within four to five inches of its frame; the stock was uncovered and shivering, and had neither bedding nor feed; the drinking water was solidly frozen; and, the unkempt stock was found to be standing in manure varying in depth from one to two feet. This was the second time in three days that the animals were in this condition, and defendant was arrested. Note: We are providing this summary of the case; however, because we could not locate the cite online, at the end of this chapter is what was found in hard copy reporters.

People v. Arcidicono, 360 N.Y.S.2d 156, 79 Misc.2d 242 (N.Y. Sup.Ct. 1974) Deprivation of sustenance: Case established that a person in charge of an animal is guilty of violating Section 353 of the Agriculture & Markets law if he fails to provide proper sustenance to an animal in his care. Established the concept that the person in charge of an animal can be found guilty of animal neglect and abuse as well as the owner. The court found that the defendant’s guilt was proven beyond a reasonable doubt and affirmed the trial court’s conviction. Regardless of the possible culpability of the owners of the gelding, it was clearly established that defendant was in charge of feeding the gelding for the three months prior to its demise, that he was aware of its loss of weight, and that he gave it back to its owners in such a state of malnutrition that it was mercifully destroyed.

People v. Bunt, 462 N.Y.S.2d 142, 118 Misc.2d 904 (N.Y. Just. Ct. 1983)Constitutionality of Section 353: The defendant brutally beat a dog to death with a baseball bat. After his arrest, he argued that the statute (353) was vague and thus unconstitutional. This court held that section 353 of the Agriculture & Markets Law is constitutional, although it is not well drafted. The defendant is amply informed of the prohibited activity and the statute contains provisions to allow the question of justification & be raised and considered. It sets forth a legitimate legislative activity in prohibiting the unjustified, needless and wanton inhumanity towards animals. The statute is not so broad that it fails to meet the standard of due process, yet it allows sufficient room for application to varied situations. Within its perimeters there is room for the expression of community standards and morals. Statutes similar to New York’s have been upheld as constitutional by other State courts and certainly represent a reasonable extension of the State’s police powers.

People v. Koogan 11 N.Y.S.2d, 49, 256 A.D. 1078 (N.Y. App. Div. 1939) Torture: Defendant was convicted of a violation of statute (Penal Law, § 185) relating to cruelty to animals for permitting a horse who was suffering from open sores to be hired out in such a condition to endure consequent torture. Judgement unanimously affirmed. The proof established that the defendant had personal knowledge of the condition of the horse. It also established that the horse was suffering from open sores and was permitted to be hired out despite this condition, with consequent torture to the animal. Under these circumstances the defendant is guilty of a violation of section 185. People v. Weeks, 172 App.Div. 117, 158 N.Y.S. 39. Apart from the element of personal knowledge, the testimony warranted a conviction. Verona Central Cheese Co. v. Murtaugh, 50 N.Y. 314; People ex rel. Price v. Sheffield Farms Slawson Decker Co., 225 N.Y. 25, 121 N.E. 474. cruelty to animals. Penal Law, § 185.

People v. O’Rourke (83 Misc. 2d 175, 369 NYS 2d 335 – NY: City Criminal Court, 1975) Overdriving: The owner of horse who was limping permitted it to continue working without supplying necessary medical attention. Defendant is guilty of violating section 353 of the Agriculture & Markets Law, which seeks to prevent overdriving, torturing and injuring animals; employee properly relied on statements of owner as to fitness of horse. Having heard the testimony, this court concludes that defendant Greene, as an employee, properly relied on the statements of defendant O’Rourke as to the fitness of the horse. Thus, the court found that defendant O’Rourke is guilty of violating section 353 of the Agriculture & Markets Law.

(N.Y. Sup. Ct., People ex rel. Thomas v. Suffolk County Dist. Attorney, 911 N.Y.S.2d 694, 28 Misc.3d 1209(A) Suffolk Co., 2010), 2010 NY Slip Op 51236 This case further analyzes the defense of justification, specifically as it relates to the exemptions provided for in subdivision three of the statute (e.g., lawfully hunting, fishing, trapping, etc.). Rather than having killed the squirrel as part of hunting activity, what was brought out at trial was that Defendant/Petitioner lured the animal to his property via bait and killed it without justification. There was assertedly no claim that he was hunting or protecting his property. Upon being found guilty, defendant then attempted to overturn his conviction based on Habeas Corpus proceeding that the court rejected as improper.

Section 353-a of Agriculture & Markets Law:

Provides that a person is guilty of felony aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally and with aggravated cruelty, kills or intentionally causes serious physical injury to a companion animal. It defines “aggravated cruelty” as conduct that is intended to cause extreme physical pain or is done or carried out in an especially depraved or sadistic manner.

The following cases are presented as samples of how this law has been interpreted and applied.

People v. Valdez, 181 A.D.3d 981 (3d Dept. 2020)Starving animals to death is a felony: Defendant allowed dogs in his care to starve to death. In this case the Court found that the accumulated evidence, showing that the defendant was “‘very cognizant’ that the dogs were dying and that they were not getting enough food or water, but did not seek any help or take appropriate measures to save the dogs,” established that defendant’s conduct was unjustifiable and intentional, and caused the dogs tremendous suffering for an extended period of time, thus satisfying the elements of aggravated cruelty to animals by starvation.

People v. Ivanchencko, 175 A.D.3d 1428, 1429 (2d Dept. 2019)Use of expert witness to confirm intent upheld: The Court upheld the use of expert witness testimony to conclude that a dog’s injuries were not accidental and that defendant’s actions (striking a puppy on the head, resulting in skull fractures and traumatic brain injury, and putting the pup in a plastic bag and dropping out of a car window on to the road), along with a significant size difference (full-grown human v. 1.5 pound puppy) provided sufficient evidence of intent and/or aggravated cruelty. See also People v. Pastor, 160 A.D.3d 419 (1st Dept. 2018), and People v. Brinkley, 174 A.D.3d 1159 (3d Dept. 2019).

People v. Jiminez, 189 A.D.3d 882, 883 (2d Dept. 2020)Failure to provide a justification charge in the killing of a small dog not required: Because the prosecution in this case failed to provide a “justification charge” to the grand jury, the Supreme Court rendered the proceedings defective. On appeal to the Second Department, the Court found that “there was no reasonable view of the evidence warranting an instruction on the defense of justification.” The defendant, a 6-foot tall, 200-pound person, used a stick to forcefully strike and injure an eight-pound Terrier poodle. The Court found defendant’s conduct unjustified to “avoid, at most, a bite by this small animal through denim pants.” Importantly, there is a significant dissent by Justice Hinds-Radix in this case that should be noted.

People v. Augustine, 89 A.D.3d 1238 (3d Dept. 2011)Aggravated cruelty demonstrated by fatal shots to dog’s head: The court affirmed the lower court’s decision with regard to felony cruelty in a dog killing. Defendant shot a healthy dog in the head five times. The Court determined that as any one of the shots would have been fatal, the act was indeed “carried out in an especially depraved or sadistic manner.” Background was that defendant killed a woman and buried her beneath her dog. The bullets used to kill the victim and dog were consistent with each other and with having been fired from a rifle located in the victim’s camper. A necropsy revealed that the dog had a full stomach and was in good health prior to death. This testimony dispelled the suggestion that the dog was put down because of illness, thus rendering the death unjustifiable. While defendant contends that the People failed to show “aggravated cruelty” as required by the statute, five shots to the head of a healthy dog — when any one of those shots would have been fatal — qualifies as conduct “carried out in an especially depraved or sadistic manner” (Agriculture & Markets Law § 353-a[1]; see People v. Garcia, 29 A.D.3d 255, 261, 812 N.Y.S.2d 66 [2006], lv. denied 7 N.Y.3d 789, 821 N.Y.S.2d 818, 854 N.E.2d 1282 [2006] ). Thus, the jury’s verdict was not against the weight of the evidence.

People v. Garcia, 29 A.D.3d 255 (1st Dept. 2006) All non-human companion animals are covered by the felony animal cruelty laws: The defendant stomped to death a pet gold fish that belonged to the children. Considering the depraved nature of the crime, the Court upheld the aggravated cruelty conviction where although the animal likely died instantly, the fact that the killing was “intentionally and menacingly done in the presence of three small children” met the required element of depravity, and further stated that “the Legislature’s concern was with the state of mind of the perpetrator rather than that of the victim.”

People v. Knowles, 184 Misc.2d 474, 478 (County Ct., Rensselaer County, 2000) Aggravated cruelty not vague phrase, thus not unconstitutional: The Court in Knowles considered the phrase “especially depraved or sadistic” and found that this element of section 353-a is not “unconstitutionally vague or overbroad.” Defendant argued that the felony charge against him should be dismissed because the statute was vague and thus unconstitutional. The court stated that that a witness at the Grand Jury proceeding testified to seeing the defendant “kick it [the dog] down the walkway” and then stated that defendant picked “it up and *** threw it up against the brick wall.” There is also additional testimony that the dog involved was a “relatively young dog, eight months old, 28 pounds, Basset mixed breed.” It is clear, in the court’s opinion, that a person of ordinary intelligence would realize that the above activity of the defendant is precisely the sort of activity intended to be covered by the statute. Therefore, defendant’s motion to dismiss based upon the unconstitutionality of the statute as applied is denied.

People v. Lohnes, 112 A.D.3d 1148 (3d Dept. 2013) All non-human companion animals are covered by the felony animal cruelty laws: The Third Department, in this case, held that “Any domesticated animal, including a horse, may be a companion animal” where it is not kept for “commercial or subsistence purposes” and is “normally maintained in or near the household of the owner or person who cares for it.” In this case, the defendant broke into the barn and stabbed and slashed a horse, causing its death. The horse was a companion animal to the owner.

People v. Jones, 154 A.D.3d 487 (1st Dept. 2017) The length of time an animal suffers in not relevant: Defendant, in relation to a domestic violence event, killed his girlfriend’s two pet birds. He squeezed one bird to death with his hands for which he was convicted of misdemeanor overdriving, torturing and injuring animals, under Section 353. The other bird died when defendant crushed its cage around it, “flattening the bird and warping the cage bars around the contours of its body (and vice versa).” The First Department affirmed the conviction for aggravated cruelty for the death of the second bird, finding that “the time it takes to kill an animal is not dispositive under the statute” and that a showing that the animal actually experienced “extreme physical pain” is not necessary under the statute.

People v. Moors, 140 A.D.3d 1207 (N.Y. App. Div. 2016) 32 N.Y.S.3d 391, 2016 N.Y. Slip Op. 4259 Intentionally prolonging suffering is depraved or sadistic: The court upheld the aggravated cruelty conviction in a non-jury trial, where a family dog was shot with an arrow by defendant while he was sitting in a blind. Court agreed that defendant intentionally carried out the killing in an especially depraved or sadistic manner by shooting the dog in the abdomen with a type of arrow that was likely to prolong the dog’s suffering.

Section 356 of Agriculture & Markets Law:
States that a person responsible for impounding an animal must provide that animal with sufficient air, food, shelter and water to survive. This statute does not apply to an owner of an animal on his or her own property.

The following case applies to this section of the law.

Chenango County Humane Society v. Percy A. Polmatier, Third Department, App. Div., June 1919 (Vol. 188, page 419) Impounded animal must be provided with the necessities of life: Cows were on the property of a caretaker acting for the owner. The animals were not being fed properly and the humane society entered the property and fed the animals. The humane society then sued for payment of said food. The court found in the humane society’s favor. The clear purpose of the statute is to secure the necessities of life to an impounded animal which has strayed from the possessions of its owner, until reclaimed by him

Section 374 of Agriculture & Markets Law:
Discusses the humane destruction or other disposition of animals lost, strayed, homeless, abandoned or improperly confined or kept. Established that when considering abandonment, sometimes animals can be deemed to be abandoned even though they are in the possession of an owner, rescue, or shelter. The concept is known as “constructive abandonment.” Thus, the animal is in effect being “abandoned” (not cared for) though actually being owned. In a situation where animals are deemed to be in a deplorable state, and the humane alternative is to euthanize them, the concept of “constructive abandonment” is operative. This means that for all intents and purposes, the animal has been abandoned by its owner (because it has not received proper food or veterinary care) even though it is still on the owner’s property. This construct allows the veterinarian to proceed with euthanizing the animal if that is the best thing to do.

The following two cases established the concept of “constructive abandonment” which is relevant to this section of the law.

Chernik v. Department of Health of the City of New York, 69 Misc. 2d 710 (N.Y. Misc. 1972), 330 N.Y.S.2d 910 Constructive abandonment: A proceeding under article 78 CPLR by the operator of an animal shelter to direct the Department of Health of the City of New York and the American Society for the Prevention of Cruelty to Animals (hereafter ASPCA) to return animals seized from petitioner is denied and the petition dismissed. In the face of an affidavit of respondents which shows that there was overcrowding of animals, improper ventilation, dogs uncaged or leashed to bannisters, cats uncaged, animal droppings, an overwhelming stench of animal urine, animals with skin diseases, malnutrition, fungus, viral, and bacterial infections and an embargo against the shelter, the impounding of many animals and the destruction of diseased dogs, petitioner’s allegations that the animals are “wellfed and wellhoused” are insufficient to create any triable issue.

Hampton Animal Shelter v. American Society for the Prevention of Cruelty to Animals, 169 Appellate Division Reports, 2D Series Constructive abandonment: Appeal to Second Department by plaintive. An order dated October 29, 1984, by the Supreme Court, Suffolk County (Gerard, J.), granted the defendants’ ex parte application to permit duly-licensed veterinarians and animal health technicians, as well as any necessary support personnel, to enter the plaintiff’s premises for the purposes of conducting further examinations and seizing and/or euthanizing those animals which are, in the veterinarian’s discretion, “so maimed, diseased, disabled or infirm so as to be unfit for any useful purpose.” The defendants’ conduct in entering the plaintiff’s premises and humanely euthanizing numerous dogs, cats and farm animals was clearly taken under authority of the order dated October 29, 1984. In light of the affidavits of the veterinarians and animal health technicians who were present during the time in question and the inhumane conditions depicted in the photographs submitted by the defendants, the plaintiff’s contention that all of the animals on its premises were wanted and that none were abandoned is incredible. Accordingly, the plaintiff’s action for compensatory and punitive damages for the wrongful destruction of its property is dismissed, with prejudice. Thompson, J.P., Kunzeman, Lawrence and O’Brien, JJ., concur.

From Hard Copy Reporter:

Mudge v. State – Probable cause for arrest

Case established that law enforcement official could reasonably infer neglect from an animal’s circumstances and thus have probable cause to arrest the defendant.

Mudge v. State

Court of Claims of New York
Jan. 13, 1944
  1. Habeas corpus 117(1)

    An attack by habeas corpus proceeding on information executed and sworn to by state trooper who arrested claimant against state for neglect and cruelty to animals was at best a “collateral attack,” and did not determine that acts of state troopers in arresting claimant and filing information were unlawful. Penal Law, § 185. See Words and Phrases, Permanent Edition, for all other definitions of “Collateral Attack.”

  2. False imprisonment 13

    If information filed by state trooper for neglect and cruelty to animals was sufficient to call for decision of magistrate as to whether warrant should issue, warrant issued thereunder was not void, and arrest made under the warrant was not unlawful, even though magistrate may have erred grossly in issuing warrant. Penal Law, § 185.

  3. False imprisonment 12

    Where warrants on which claimant was arrested were not jurisdictionally defective, claimant had no cause of action against state for false imprisonment even if state caused claimant’s arrest under such warrants.

  4. False imprisonment 13

    State troopers who, on inspecting claimant’s barn with claimant’s consent, found main door so frost swollen that it could not be closed and stock uncovered and shivering, without bedding or feed, drinking water solidly frozen, and stock standing in manure one to two feet in depth, had “probable cause” for arrest of claimant for neglect of and cruelty to animals. Penal Law, § 185. See Words and Phrases, Permanent Edition, for all other definitions of “Probable Cause.”

  5. False imprisonment 13

    “Probable cause,” as protection against action for false imprisonment, is the knowledge of facts, actual or apparent, strong enough to justify reasonable man in belief that he has lawful grounds for prosecuting defendant, and want of probable cause does not mean want of any cause, but want of any reasonable cause.

  6. States 184

    A judicial determination that there was probable cause was proof that arresting officer had reasonable ground for suspecting that person arrested was the offender and that arrest was made in good faith and without evil design.

  7. Arrest 63(3)

    Where state troopers, on inspecting barn of claimant against state, found main door so frost swollen that it could not be closed, stock uncovered and shivering, without bedding or feed, and standing in manure from one to two feet, with drinking water solidly frozen, it was troopers’ duty to arrest claimant for neglect of and cruelty to animals. Penal Law, § 185.

  8. False imprisonment 12

    The state was not liable to claimant for damages for acts of state troopers acting under warrant of justice of peace to commit claimant for mental observation after arraignment for neglect of and cruelty to animals, and under subsequent order of county judge returning claimant to justice for further proceedings, since troopers acted under orders over subject matters of which issuing officers had jurisdiction, and which orders on their face did not show lack of jurisdiction of claimant’s person. Penal Law, § 185.

  9. False imprisonment 12

    The state was not liable for false arrest and imprisonment as to acts of state troopers from time of, and subsequent to, issuance of warrant for claimant’s arrest by justice of the peace, since thereafter troopers acted solely under due process of law.


Claim by Delbert Mudge against the State of New York to recover damages for false imprisonment after alleged unlawful arrest by state troopers.

Claim dismissed on the merits.

David B. Alford, of Middleburg (William H. Lynes, of Delanson, of counsel), for claimant. 45 N.Y.S.2d57

Nathaniel L. Goldstein, Atty. Gen. (Arthur W. Mattson, Edward R. Murphy, and Sidney B. Gordon, Asst. Attys. Gen., of counsel), for the State.


Alleging unlawful arrest by State Troopers, with subsequent commitment by a Justice of the Peace, for mental observation, claimant seeks damages of $10,100 for “false imprisonment.”

For defense hereto, the State has offered affirmative proof to establish “probable cause for the arrest,” together with complete freedom from responsibility in connection with claimant’s confinement for mental observation.

At the time of arrest, claimant owned and operated a three hundred acre farm at Duanesburg, Schenectady County, where he kept two horses, two cows, one bull and two yearlings.

Believing that such stock was being neglected, Sergeant Eggleston and Trooper Foster, of the State Police, accompanied by the Schenectady County Humane Society Superintendent, visited claimant’s farm at 1:30 P.M. on January 23, 1943. Advising claimant of the purpose of their call, such officials requested and promptly received claimant’s permission to visit the barn where such stock was stabled, to which they were voluntarily accompanied by claimant.

Inspection of such barn revealed the following conditions: the main door was so frost swollen that it could not be closed within four to five inches of its frame; the stock was uncovered and shivering, and had neither bedding nor feed; the drinking water was solidly frozen; and, the unkempt stock was found to be standing in manure varying in depth from one to two feet.

On a prior visit to claimant’s barn, made two days earlier with a town constable, Trooper Foster found seven unopened bales of hay in the subbasement of the barn, one of which bales he opened and partially fed to the stock. On January 23 Trooper Foster found the remaining six and onehalf bales of hay identically as he had last seen them, except that the upturned end of the opened bale, was then thick with mice dung.

The troopers, after having fed and watered the stock, and completed arrangements with claimant’s wife for their further care, advised claimant that he was under arrest “for cruelty to animals,” whereupon they brought him before Justice of the Peace MacDougall of the Town of Duanesburg.

Before Justice of the Peace MacDougall, Troop Sergeant Eggleston formally executed and swore to an information, while Trooper Foster executed and swore to a “Deposition of Witness Before Warrant,” on the reverse side of which was indorsed “Information.” Each of such documents set forth details of claimant’s alleged acts of cruelty, the latter in greater detail than the former.

Justice MacDougall then issued a warrant and handed it to Trooper Foster for execution, by whom claimant was at once formally placed under arrest. In such warrant claimant was charged with a violation of the provisions of Sec. 185, Penal Law, which, in part, provides, “A person who *** deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it *** or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a misdemeanor *** .”

During the preparation of documents upon which such warrant was issued claimant, in the presence and hearing of Justice MacDougall, was asked by Schenectady County Humane Society Superintendent William H. McGinn, why he had neglected his stock, to which claimant replied, “that morning it was too cold to go out in the barn.”

Following claimant’s arrest he was promptly arraigned before Justice MacDougall, but instead of offering a plea, he inquired of State Troop Sergeant Eggleston, in the hearing of Justice MacDougall, “Isn’t there some way we can fix this up?”

The occasion of claimant’s inquiry, it is reasonable to assume, arose from the fact that Justice MacDougall, on two prior occasions, had merely imposed fines when claimant was arraigned before him on similar charges, first, on January 12, 1942, when the fine so imposed was $20, and on January 21, 1943, two days prior to that of the instant arrest, when such fine was in the amount of $50.

Both of such fines so imposed were promptly paid by claimant out of cash then carried on his person, concerning payment of which Justice MacDougall testified, “He just simply paid *** it didn’t seem to bother him at all.”

Justice MacDougall, then, solely of his own volition, by written order of commitment, directed that claimant be “held for mental observation,” at the Schenectady County Home, which order was handed to and promptly executed by Trooper Foster.

Justice MacDougall testified that neither State Trooper had suggested such commitment. He further testified that his chief reason “was to protect Mr. Mudge and the cattle, *** it all added up, I could not see any use of his being arrested and pleading guilty and still neglecting his livestock and I’d like to find out what the trouble was before I did any more with it.”

Justice MacDougall assigned the following further reasons for his having committed claimant for mental observation: “I knew Mr. Mudge ‘all my life’; *** he has done things that *** were quite a little out of the ordinary; I know one time *** in October he said he wanted to start his harvest, while the usual procedure is to start harvest in the latter part of June, not after October;” and ” *** Mr. Mudge had a son who was pronounced criminally insane and committed to Mattewan and *** another son a mental defective *** .”

On January 27, 1943, two competent physicians subjected claimant to a mental examination and immediately thereafter filed a report based thereupon, with the Schenectady County Court, which report disclosed that claimant was found to be “selfsufficient, lawless, overestimates himself, *** (is) shiftless *** a social, not a mental problem *** and is fully responsible for his acts.”

Honorable James W. Liddle, Schenectady County Judge, immediately upon receipt of such report directed, by written order, that claimant be returned to Justice MacDougall for “further proceedings,” which order was handed to and promptly executed by Trooper Foster.

At claimant’s request for opportunity to call his attorney, he was brought to the Troop Outpost at Duanesburg, where, Justice MacDougall, upon being advised of claimant’s presence there, immediately called in person at such Outpost, and after having advised claimant, as the latter testified, that “the charge still stood against me,” read the information to claimant and advised him of his rights, as he had earlier done upon the original arraignment, after which Justice MacDougall waited a considerable time at such Outpost to enable claimant’s counsel to appear.

While at the Outpost, Mr. MacDougall was served with a writ of habeas corpus “to inquire into the cause of claimant’s detention,” which writ had been issued by, and made returnable before, Honorable J. Walter Bliss, Supreme Court Justice, whereupon Mr. MacDougall released claimant upon his own recognizance. A copy of such writ had likewise been served upon the District Attorney of Schenectady County who thereupon advised Mr. MacDougall “to give it no attention.”

Supreme Court Justice Bliss, upon the return of said writ on January 28, 1943, sustained same and discharged claimant from further custody, and granted claimant $25 costs and disbursements “against the Town of Duanesburg,” which sum, it was directed, was to be paid to claimant’s attorney.”

Mr. MacDougall appeared before Supreme Court Justice Bliss, but no appearance was had at such hearing on the part of the District Attorney of Schenectady County.

The order issued by Supreme Court Justice Bliss, effectuating the foregoing, in part recited: “and the District Attorney of Schenectady County having phoned me ***that he was not going to appear in the matter and that he did not oppose the sustaining of the writ of habeas corpus ***and the relator having moved for an order sustaining the writ on the ground that the information failed to allege facts sufficient to constitute a crime and there being no opposition thereto and due deliberation having been had ***.”

Since claimant’s discharge from custody, as aforesaid, the charge upon which he was arrested on January 23, 1943, has been neither further pressed nor withdrawn, in consequence of which, such matter has not been determined upon the merits.

Claimant presents claim herein on the basis that his discharge from custody by order of Supreme Court Justice Bliss establishes that his arrest was not only initially void, but that all subsequent steps taken were unlawful.


[1] The attack upon the “Information” through the medium of a habeas corpus proceeding was at best a collateral one, and not determinative of the State Troopers’ having committed any unlawful acts.

[2] If such information was sufficient to call for a decision by the magistrate as to whether such warrant should issue such warrant is not void and arrest made thereunder not unlawful, even though the Justice of the Peace in issuance of the warrant, may have erred grossly. Vittorio v. St. Regis Paper Co., 239 N.Y. 148, at page 152, 145 N.E. 913.

[3] “Since the warrants upon which the plaintiff was arrested were not jurisdictionally defective, the plaintiff has failed to establish any cause of action against defendant for false imprisonment, even if the defendant caused the plaintiff’s arrest under such warrants.” Vittorio v. St. Regis Paper Co., supra, 239 N.Y. page 154, 145 N.E. page 915.

[4,5] The State Troopers had probable cause for claimant’s arrest herein. “Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. The want of probable cause does not mean the want of any cause, but the want of any reasonable cause ***. Probable cause ***is an absolute protection against an action for malicious prosecution, even when express malice is proved.” Burt v. Smith, 181 N.Y.1, at page 5, 73 N.E. 495, 496, 2 Ann.Cas. 576.

[6] A further judicial determination of the question of probable cause is proof that a crime was committed and that the arresting officer had reasonable ground for suspecting that the person so arrested was the offender and that the arrest was made in good faith and without evil design. Schultz v. Greenwood Cemetery, 190 N.Y. 276, at page 278, 83 N.E. 41. Decision in Tierney v. State (Claim No. 25823), April 26, 1943, 266 App.Div. 434, 42 N.Y.S.2d 877, at page 880, turned upon the question of “probable cause.”

[7] The State Troopers, in view of the existing conditions, were under obligation to arrest claimant. Schultz v. Greenwood Cemetery, supra, 190 N.Y. at page 281, 83 N.E.41.

[8] Claimant, maintaining, but offering no proof in substantiation thereof, that neither Justice of the Peace MacDougall nor Schenectady County Judge Liddle had jurisdiction to issue the orders which were respectively issued by them, seeks to hold the State liable for the acts of the State Police in the execution of such orders, together with all consequences flowing therefrom.We feel no necessity here of passing upon such questions so raised, except to point out that in our opinion the State is free of liability for execution of such orders by reason of the fact that the State Police acted under orders, over the subject matters of which the issuing officers had jurisdiction and which orders on their faces did not show any lack of jurisdiction if such there was as to jurisdiction of the person of claimant. Savacool v. Boughton, 5 Wend. 170, at page 181, 21 Am. Dec. 181.

[9] Further, the State is free of liability for false arrest and imprisonment, for all acts of the State Police from the time of, and subsequent to, the issuance of warrant for claimant’s arrest, as at such times they acted solely under “due process of law.” Gearity v. Strasbourger, 133 App.Div.701, at page 704, 118 N.Y.S. 257, at pages 259, 260.Claimant having failed to establish that his arrest and imprisonment resulted from any unlawful act or acts on the part of officers or employees of the State, his claim by separate decision herein, has been dismissed upon the merits.