Opinion
June Term, 1900.
Present — Van Brunt, P.J., Rumsey, Patterson, Ingraham and McLaughlin. JJ.
Motion for leave to go to the Court of Appeals granted.
We think that the motion for leave to go to the Court of Appeals in this case should be granted. But in view of the misconception and misstatements of the affidavits submitted on this motion (which-however, have no place in a motion of this description) as to the decision of this court, it may be proper to state exactly what was decided by the court. The jury in this case had a right to find that the plaintiff went into the defendant's store, and while looking at some goods, without the slightest ground for suspicion, was accused of having stolen one of the watches which had been placed in a tray before her (but which had in fact never been in the tray during its exhibition to her); that she was commanded to stand still until the sales girl could send for the superintendent; that when the superintendent came up he stated that the detective must be sent for; that on the arrival of the detective the facts were stated to her, and she informed the plaintiff that she had to be searched; that the plaintiff replied that if she had to be searched she supposed that was the only thing for her to do if they considered her to be a common thief; and that she did not go willingly, but being surrounded by the officials of the defendant, and being controlled by their statement that she had to be searched, she went without resistance, and was searched. The jury had a right further to find that the defendant stated that the plaintiff had suffered from the system which existed in his store. And the court held that if a system existed in the store to which the public were invited, which subjected them to an assault, such as the jury had a right to find was committed upon the plaintiff by the servants of the defendant in pursuance of this system, they could award punitive damages, there being not the slightest ground for suspicion against the plaintiff. The system sworn to in the affidavits submitted on this motion could never have resulted in such indignities being heaped upon a customer. Theory and practice do not seem to coincide. The motion for leave to go to the Court Appeals should be granted.