Benner v. Walsh

193 A.D. 962

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1920
• Status: Published

Opinion

Judgment unanimously affirmed, with costs. Both counsel erroneously refer to the judgment as entered upon the direction of a verdict, and the clerk’s extract from the minutes contained the same error. The judgment, however, correctly recites that the court dismissed the complaint at the end of the evidence. There was no verdict directed. The learned trial judge was right in his disposition of the case. As to the cause of action for assault, the plaintiff’s own testimony showed a flagrant case of resisting an officer in the performance of his duty (Penal Law, § 1823),

* criminal contempt of court (Id. § 600), and entering into a combination to resist legal process (Id. § 1787). Any force used by the defendant deputy sheriff was necessary in self-defense and in the endeavor to save the property which was the subject of the writ of replevin. As to the cause of action for malicious prosecution, the plaintiff’s evidence shows her guilty of assault as well as of the other crimes indicated as above. Upon examination she was held for the action of the grand jury, and subsequently indicted. The fact that the trial jury in the County Court acquitted her does not alter the fact that on her own story there was probable cause for her arrest. Present &emdash;1 Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ.

See Penal Law, §§ 1824, 1825, 1851.— [Rep.