Mitchell v. O'Hara — 165 Misc. 630

Majority

p. 630

Hyman Mitchell, Respondent, v. William J. O’Hara, Appellant, and Henry Kaufman, Impleaded Defendant.

Supreme Court, Appellate Term, First Department,

December 8, 1937.

Blecheisen & Whalen [Jacob Blecheisen of counsel], for the appellant.

Morris Bauman, for the respondent.

It was error to submit the false arrest cause of action to the jury. It is conceded that the defendant was assaulted, and thereafter he reported the matter to the police authorities, who, acting on their own responsibility, arrested the plaintiff. Defendant may be liable for malicious prosecution, but he cannot be sued for false arrest. The case having been submitted to the jury on both causes of action, it is impossible to determine upon which the verdict is founded. There must be a reversal if either theory is unsupported by adequate evidence.

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

All concur. Present — Lydon, Levy and Hammer, JJ.