Woodson v. New York City Housing Authority

11 A.D.2d 329, 205 N.Y.S.2d 443, 1960 N.Y. App. Div. LEXIS 7905

Opinions

Memorandum by the Court. Judgment reversed on the law and a new trial ordered, with costs to abide the event. "Whether or not plaintiff was wrongfully assaulted and whether or not he was falsely arrested and imprisoned should not have been determined by the trial court as a matter of law. Under the circumstances here there were involved questions of fact which should have been submitted to the jury. The mere fact that a defendant in this type of action rests upon plaintiff’s case, without introducing any proof, does not necessarily amount to a concession of the facts establishing the liability on the part of the defendant. Where, as here, conflicting inferences may be drawn from the evidence produced by the plaintiff, or where, as here, the credibility of plaintiff’s witnesses may be questioned, the defendant is entitled to go to the jury. (See 4 Wait’s N. Y. Practice [4th ed.], p. 279; Salomone v. Yellow Taxi Corp., 242 N. Y. 251; Kavanagh v. Wilson, 70 N. Y. 177; Mendoza v. Levy, 111 App. Div. 449.) The defendant here specifically excepted to “that part” of the charge “that takes out of the jury’s hands the question of whether or not an assault and battery and false arrest was committed ’ ’ and this was sufficient of itself to apprise the court of its errors in its charge and to give it an opportunity to correct same. Thus, the point was properly saved for review in this court. (See Bergman v. Schultz, 274 App. Div. 1001; Gangi v. Fradus, 227 N. Y. 452, 458, 459.)