Fowler v. Stuart

197 A.D. 736, 189 N.Y.S. 639, 1921 N.Y. App. Div. LEXIS 7541

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 1921
• Status: Published

Opinion

John M. Kellogg, P. J.:

The complaint alleged that the defendant, a police officer of the village of Northville, without probable cause, maliciously and without a warrant, arrested plaintiff and took him before the police justice; that the case was tried and the plaintiff found guilty and fined ten dollars, but upon an appeal to the County Court the judgment of conviction was reversed and the plaintiff discharged. The answer alleges a proper defense, but the allegations of the answer were not admitted by the defendant’s motion for judgment on the pleadings. The judgment must, therefore, rest upon the alleged insufficiency of the complaint. The fact that the County Court reversed the conviction shows that the proceeding had ended. It. did not, however, destroy the effect of the allegations that the arrest was made without probable cause, and maliciously. In view of the allegations of the answer, it is probable that the action may not have much merit; nevertheless we must hold that the complaint states a cause of action.

The judgment is, therefore, reversed and a new trial granted, with costs to the appellant to abide the event.

All concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.