Opinion
June 27, 1963
Appeal by the State of New York from an order of the Court of Claims denying its motion to dismiss the claim upon the ground that it fails to state facts sufficient to constitute a cause of action for false arrest and imprisonment. The claim alleges that the claimant sustained damages as the result of his arrest and detention by a member of the State Police pursuant to the command of a warrant issued by a Justice of the Peace. The State is sued on the theory that he executed a process which was void for the failure of the Magistrate to take the deposition of the informant as required by section 148 of the Code of Criminal Procedure. There is no allegation that it appeared on the face of the warrant that the deposition necessary to its proper issuance had not been taken; nor are other facts pleaded which would indicate that the process otherwise was not fair on its face. The absence of such allegations is fatal to the claim. ( Douglas v. State of New York, 269 App. Div. 521, affd. 296 N.Y. 530; Nastasi v. State of New York, 275 App. Div. 524, affd. 300 N.Y. 473; Warner v. State of New York, 297 N.Y. 395, 403; Restatement, Torts, § 124.) Since this record does not contain a copy of the warrant we cannot determine with assurance and finality that a sufficient claim could not be framed and claimant should be afforded an opportunity to amend. Order reversed, without costs, with leave to claimant to serve an amended claim within 20 days. Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ., concur.