Brisbane v. City of New York

Appellate Division of the Supreme Court of New York

Brisbane v. City of New York

6 A.D.2d 882, 177 N.Y.S.2d 606, 1958 N.Y. App. Div. LEXIS 5076

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 14, 1958

StatusPublished

This text of 6 A.D.2d 882 (Brisbane v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brisbane v. City of New York, 6 A.D.2d 882, 177 N.Y.S.2d 606, 1958 N.Y. App. Div. LEXIS 5076 (N.Y. Ct. App. 1958).

Pincite

Opinion

In an action to recover damages for unlawful assault by alleged police officers, and for other relief, the appeal is from a judgment dismissing the complaint, after defendant rested upon the plaintiffs’ ease, on the ground [883]*883that the evidence was insufficient to warrant submission to the jury of the issue as to whether the individuals, who assaulted the plaintiff Edward Brisbane, were police officers acting within the scope of their employment. Judgment reversed and a new trial granted, with costs to abide the event. It was error to dismiss the complaint. In our opinion the evidence was sufficient prima facie to permit an inference by the jury that the assaulters were police officers and that at the time of the assault they were acting within the scope of their employment (Osipoff v. City of New York, 286 N. Y. 422). As there is to be a new trial, it should also be noted that it was error for the trial court to exclude the admission, contained in the affirmative defense pleaded in the answer, to the effect that the assaulters were policemen acting within the scope of their duties. This admission should not have been excluded, in spite of the fact that, in denials addressed to the paragraphs of the complaint, defendant denied that the assaulters were policemen (Kraus v. Birnbaum, 200 N. Y. 130). Nolan, P. J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for unlawful assault by alleged police officers, and for other relief, the appeal is from a judgment dismissing the complaint, after defendant rested upon the plaintiffs’ ease, on the ground [883]*883that the evidence was insufficient to warrant submission to the jury of the issue as to whether the individuals, who assaulted the plaintiff Edward Brisbane, were police officers acting within the scope of their employment. Judgment reversed and a new trial granted, with costs to abide the event. It was error to dismiss the complaint. In our opinion the evidence was sufficient prima facie to permit an inference by the jury that the assaulters were police officers and that at the time of the assault they were acting within the scope of their employment (Osipoff v. City of New York, 286 N. Y. 422). As there is to be a new trial, it should also be noted that it was error for the trial court to exclude the admission, contained in the affirmative defense pleaded in the answer, to the effect that the assaulters were policemen acting within the scope of their duties. This admission should not have been excluded, in spite of the fact that, in denials addressed to the paragraphs of the complaint, defendant denied that the assaulters were policemen (Kraus v. Birnbaum, 200 N. Y. 130). Nolan, P. J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

6 A.D.2d 882, 177 N.Y.S.2d 606, 1958 N.Y. App. Div. LEXIS 5076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brisbane-v-city-of-new-york-nyappdiv-1958.

Opinion

Related

Cite This Page — Counsel Stack