The opinion
AUGUSTUS N. HAND, Circuit Judge
(dissenting in part).
This is an action for false imprisonment brought against the sheriff and deputy sheriff of Westchester County, New York, and the warden and deputy warden of the county jail in which the plaintiff was confined, who were also deputy sheriffs. Emma H. Schmidt and Dr. Thomas Poultney Ellicott Mathews were also joined in the action as defendants and charged with participation in the tortious acts for which the other defendants were sued.
The plaintiff was indicted by the grand jury of Westchester County on January 28, 1936, for assault in the third degree. On the same day the district attorney issued a bench warrant directed to any peace *680 officer -of -the State of New York which commanded him to arrest the 'plaintiff and bring her “before the Supreme Court to answer the indictment,” or if the court had adjourned for the term to deliver her into the custody of the sheriff of Westchester County, or if she require it, that she be taken before any magistrate in that county that she may give bail to answer the indictment. The bench warrant was given to the sheriff’s office for execution and on the next day deputy sheriff Koch went to Police Headquarters in Mount Vernon and had the defendant Emma H. Schmidt, a policewoman connected with the Police Department of the City of Mount Vernon, assigned to go with him. The deputy sheriff took the plaintiff directly to the Westchester County Jail, accompanied by Miss Schmidt, and there turned her over to the defendant Deputy Warden Bassett, who placed her in a cell. She started to make a disturbance at the jail and the defendant Dr. Mathews, who was an interne at Grasslands Hospital and at the time was making his rounds in the jail, was asked by Warden Toucher to examine her. He did so and issued a certificate that she was “suffering from a paranoid state and is in such a state of health that she requires immediate treatment and should be removed.to a hospital for such treatment.” This certificate was presented to County Judge Nolan who, on January 28, 1936, made an order that she be transferred to- Grasslands Hospital. Section 508 of the Correction Law required that the certificate be signed by the jail physician and the warden, but it was only signed by Dr. Mathews as “Acting Jail Physician” who had been assigned to the jail clinic during the month of January, 1936, in the absence of the jail physician. The plaintiff was transferred to the hospital where she remained until February 26, 1936, when she was returned to the jail and bailed out.
The plaintiff does not contend that her original arrest was invalid but says that she should have been arraigned in accordance with the terms of the bench warrant before being brought to the jail and that therefore she should not have been confined in the jail or sent to the hospital. She also claims that all the defendants conspired to put her in jail and send her to the hospital for the purpose of thwarting her in the prosecution of an action she had brought against a man in Mount Vernon for seduction and breach of promise. The jury found a verdict for the sum of $5000 in favor of the plaintiff against the sheriff, Casey; the deputy sheriff, Koch; the warden, Toucher, and the deputy warden, Bassett. It found a verdict in favor of Emma H. Schmidt, who had testified in substance that she only acted as a matron and did not cause plaintiff’s arrest or confinement, and also in favor of Dr. Mathews, who testified that he knew nothing about the plaintiff until he was asked to examine her and said that he had treated her like any other person who was brought to the jail.
I concur in the majority opinion in so far as it affirms the dismissal of the complaint against the defendants Emma H. Schmidt and Dr. Mathews, but differ with its views as to the disposition of the judgment against the appellants Casey, Koch, Toucher and Bassett. In the case of these appellants I think not only that the judgment should be reversed, but the complaint dismissed. The cause of action against these four defendants was begun January 21, 1938, and for purposes of the statute of limitations each must be regarded as a sheriff of the State of New York. Cumming v. Brown, 43 N.Y. 514 . The plaintiff was discharged from the hospital bn February 26, 1936, and admitted to bail on the same date. Her alleged false imprisonment therefore ended more than one year'before the present action was brought.
Section 51 of the New York Civil Practice Act reads as follows: ¡
Ҥ 51. Actions to be commenced within one year. The following actions must be commenced within one year, after the cause of action has accrued:
“1. An action against a sheriff * * * upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty; except the non-payment of money collected upon an execution.”
If the foregoing section applied to the case of the Sheriff of Westchester County and his three deputies, the action against them was barred by the New York statute of limitations. The question is whether they were acting in an “official capacity” when they did the acts for which they were held liable in the court below. I think that the acts of the sheriff and his deputies and any neglect of duty on their part were “officiál” within the interpretation given to Section 51(1) supra, by the New York Courts.
In Wiener v. Ellrodt, 268 N.Y. 646 , 198 N. E. 537 , affirming 243 App.Div. 820 , 278 N. *681 Y.S. 458, a sheriff had falsely certified that he had served papers in an action by Wiener against one Ravekes and was sued for damages by Wiener because he had made a false return. Though the sheriff had given a false certificate, it was nevertheless held that when making it he was acting in an “official capacity” and that the one year statute of limitations created by Section 51(1) of the Civil Practice Act in respect to actions against a sheriff when acting in his official capacity, and not the general statute of limitations applicable to such actions, should govern.
In Politano v. Jacoby, 264 N.Y. 686 , 191 N.E. 627 , affirming 241 App.Div. 820 , 270 N.Y.S. 988 , an action against a sheriff for false imprisonment was held to be governed by the one year statute. He had arrested the plaintiff under an order committing the latter to jail for nine months, but held him for seventeen months and then transferred him to his successor. Nevertheless, the acts were determined to have been done in his “official capacity.” See also In the Matter of Politano v. Fidelity & Deposit Co. of Maryland, 276 N.Y. 572 , 12 N.E.2d 581 , affirming 250 App.Div. 880 , 297 N.Y.S. 159 .
The decision in Pickle v. Page, 225 App. Div. 454 , 233 N.Y.S. 461 , affirmed in 252 N. Y. 474 , 169 N.E. 650 , 72 A.L.R. 842 , and relied on by the plaintiff and the court below, seems to us distinguishable from Wiener v. Ellrodt and Politano v. Jacoby, supra. In Pickle v. Page, a sheriff aided a woman, who had been awarded custody of her child under a divorce decree of an Ohio court, to kidnap the child in New York. Prior to the date of the Ohio decree the child had been legally adopted in New York by its grandmother, the plaintiff, with the consent of its father, because of the abandonment by the mother. The mother had come to New York and sought a writ of habeas corpus for the purpose of reclaiming her child but had failed to sustain it. She then went to the plaintiff’s house accompanied by the defendant, who was the Sheriff of Steuben County, New York, and ostensibly went along to keep the peace. He showed his badge, asserted his authority and assisted in the kidnapping. Thereafter the plaintiff sued the sheriff for aiding in the kidnapping. The court held that he was not acting in an official capacity and therefore the one year statute of limitations did not apply. His assistance in the kidnapping was without the least color of authority and was not rendered under the sanction of an order of any New York court. His acts were not those of a sheriff, but of a mere volunteer who was contributing to the tort of the child’s mother. Moreover, the question whether he was acting in an official capacity was left to the jury at the defendant’s request and for that reason the court held he was not in a “position to complain either that the trial court did not decide it as a question of law in his favor or that the jury, upon sufficient evidence, decided the matter adversely to him.”.
In view of the fact that in the present case the cause of action is barred by the statute of limitations, it is unnecessary to consider whether the order for the transfer of the plaintiff to the hospital afforded the sheriff and his deputies protection against the plaintiff’s claims or to discuss the other objections to the judgment against the defendants which are raised in their brief.
In answer to the conclusion that the one year statute of limitations is applicable, it has been suggested that the short statute for actions against sheriffs was enacted to protect their sureties by requiring actions to be brought speedily. While this may have been the immediate reason given, the statute does not even mention sureties and in terms directly covers actions “against a sheriff * * * upon a liability incurred by him by doing an act in his official capacity or by omission of an official duty; except the non-payment of money collected upon an execution.”
But if the origin of the statute is important and liability of sureties throws light on the liability of the sheriff, to whom the short statute in terms directly applies, it seems clear that sureties would be liable for such wrongful acts on the part of the sheriff and his deputies as are charged in the present case.
The distinction is sought to be drawn between acts in excess of a sheriff’s authority, which he purports to do as sheriff, and acts which are done both in excess of authority and maliciously, that is to say, for some consciously personal and unlawful end. I can see no justification for distinguishing between the latter class of acts and those dealt with by the New York Court of Appeals in Wiener v. Ellrodt, 268 N.Y. 646 , 198 N.E. 537 , and Politano v. Jacoby, 264 N. Y. 686 , 191 N.E. 627 , which are very recent decisions. Moreover, the language of the court in Eckstein v. Massachusetts Bonding & Ins. Co., 281 N.Y. 435 , 24 N.E.2d 114, *682 116 , 125 A.L.R. 1143 , indicates that the distinction suggested is untenable. In that case the condition of the bond of a constable was to “well and faithfully perform and execute the duties of the office of constable, without fraud, deceit, or oppression.” The court, referring to the form of the statutory bond, which is the form required of sheriffs under § 180 of the New York County Law, Consol.Laws. c. 11, remarked that: “By its terms, construed in the light of the statute, the bond protects against malfeasance or nonfeasance of the officer as to the parties in behalf of whom or against whom he has process to execute * * * and against his malfeasance or misfeasance as to third parties with whose property or rights he unlawfully interferes * * * in both cases only while acting within the scope of his official duties and performing ministerial functions or while performing judicial functions where he has maliciously deprived a person of his property or rights (57 C.J. 793).”
It may be argued that the above statement as to the bond extends the protection of the undertaking and the liability of the sureties to third persons only where the sheriff has been guilty of “malfeasance or misfeasance” in official duty while performing ministerial functions or has maliciously infringed upon the rights of third persons while performing judicial functions. But it surely cannot be supposed that a greater liability is imposed on sureties where the official acts maliciously in performing judicial functions than where he acts maliciously in performing ministerial functions, nor can I discover a basis for the application of such a rule in any of the decisions. Moreover, even if we should assume the existence of such a legal distinction, there is no basis for holding that the sheriff, his deputy or the wardens committed fraudulent acts in their individual interests. To hold that the sureties on the sheriff’s bond would not be liable for imprisonment of the plaintiff because of the sheriff’s malicious motives would involve a novel doctrine of suretyship not warranted by the New York authorities. The deputy sheriff lawfully took the plaintiff into custody under the bench warrant. While, in taking her to prison instead of before a magistrate, he exceeded his authority, very soon afterwards he placed her in the hospital pursuant to an order of the county judge. All these things were done “in his official capacity.” They did not cease to be “official” because of any malicious motive and the sureties would not be exempt from liability because such a motive existed. This, I think, is the New York law and is the law of nearly all other jurisdictions. Kosowsky v. Fidelity & Deposit Co. of Maryland, 1928, 245 Mich. 266 , 222 N.W. 153 ; Stark Hickey, Inc., v. Standard Acc. Ins. Co., 291 Mich. 350 , 289 N.W. 172 ; Clancy v. Kenworthy, 74 Iowa 740 , 35 N.W. 427 , 7 Am.St.Rep. 508 ; Powell v. Fidelity & Deposit Co. of Maryland, 1932, 45 Ga.App. 88 , 163 S.E. 239 ; Indiana ex rel. Tyler v. Gobin, C.C., 94 F. 48 ; Greenberg v. People to Use of Balaban, 225 Ill. 174 , 80 N.E. 100 , 8 L.R.A.,N.S., 1223, 116 Am.St.Rep. 127 ; Commonwealth v. De Luca, 131 Pa.Super. 451 , 200 A. 712 ; Branch v. Guinn, Tex. Civ.App., 242 S.W. 482 . See also Wieters v. May, 71 S.C. 9 , 50 S.E. 547 ; State v. Mankin, 68 W.Va. 772 , 70 S.E. 764 ; Union Indemnity Co. v. Webster, 218 Ala. 468 , 118 So. 794 . The only decisions I find to the contrary are Towle v. Matheus, 130 Cal. 574 , 62 P. 1064 ; State v. Wade, 87 Md. 529 , 40 A. 104 , 40 L.R.A. 628 , and State v. Dayton, 101 Md. 598 , 61 A. 624 , where the liability of sureties was construed narrowly. The decisions in Cambridge v. Foster, 195 Mass. 411 , 81 N.E. 278 ; De Sisto v. Stimmel, 58 App.Div. 486 , 69 N.Y.S. 431 , and Truog v. American Bonding Co., 56 Ariz. 269 , 107 P.2d 203 , were all cases where the official was not acting under any color of authority. It must be remembered that the question before us is not as to the liability of the sheriff and his deputies but as to whether their acts were performed in their “official capacity” so as to come within the short statute of limitations applicable to sheriffs.
A New York decision which is invoked against applying the short statute of limitations is the old case of Board of Supervisors of Kings County v. Walter, 4 Hun. N.Y., 87. There, a sheriff collected moneys from his county upon false vouchers which he made out for the board of fictitious prisoners. A majority of the court held that the short statute of limitations did not apply. But he had been collecting claims against the county based upon vouchers which not only were issued by him in excess of his authority, but also represented fictitious claims involving no actual transactions on his part, either individually or as sheriff. Another New York decision .which is relied on in the majority opinion is Dennison v. Plumb, 18 Barb., N.Y., 89. There a sheriff who had sold the property of B on an execution issued against the *683 property of A was held to have acted “in his official capacity” and to have accordingly had the right to invoke the short statute of limitations applicable to sheriffs. The statement in the opinion that the short statute applied “in the absence of any evidence to show that the deputy * * * acted in bad faith, knowing or believing that he had no right to seize the property upon the execution * * *” was clearly a dictum. I can see nothing in the general language of Dennison v. Plumb to justify departing from what seems to me the fair implication of Wiener v. Ellrodt, Politano v. Jacoby and Eckstein v. Massachusetts Bonding & Ins. Co., supra.
The judgment is affirmed as to the defendants Schmidt and Mathews. I think that it should be reversed as to the defendants Koch, Casey, Toucher and Bassett, with directions to dismiss the complaint against them on the ground that the action was barred by the statute of limitations. It seems to me that this, rather than a new trial, ought to be the disposition of the case (a) because their acts were done in an “official capacity” and malice, if it existed, did not toll the statute; (b) there was no substantial proof of malice.