Zwickert v. Brooklyn Heights Railroad

127 A.D. 304, 111 N.Y.S. 480, 1908 N.Y. App. Div. LEXIS 1966

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1908
• Status: Published

Opinion

Rich, J.:

The plaintiff has recovered a judgment against defendant for false arrest and imprisonment. . It conclusively appeared upon the trial that plaintiff had committed no crime and that his arrest was illegal and unjust.. The question litigated was whether the arrest was caused by defendant. Clearly the defendant was not liable for the arrest unless it took- some part in bringing it about, and while this was the real question -of fact to be presented to the jury, the trial justice charged at the request of plaintiff’s counsel, “ that if the defendant makes no claim that there was any crime committed by this plaintiff,- the simple question for the jury to determine' is whether there was or was not an imprisonment and restraint of the person of the plaintiff.” ‘ The effect of this charge was to take from the consideration of the jury the question whether the defendant was responsible for the arrest. This charge was erroneous, and the judgment and order must be reversed, with costs.

Woodward, Jenks, Gaynor and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.