People ex rel. Damato v. Kempner — 148 N.Y.S. 1136

Majority

p. 1136

PEOPLE ex rel. DAMATO, Respondent, v. KEMPNER, City Magistrate, et al., Appellants.

(Supreme Court, Appellate Division, Second Department.

June 12, 1914.)

Headnote

Proceeding by the People of the State of New York, on the relation of Gaetano Damato, against Otto Kempner, City Magistrate, etc., and another.

As the complaining witness, Zrake, had long carried op dentistry in violation of statute, relator’s alleged payments for five months in 1912, and the $20 monthly payments thereafter, could be found to have been in order to buy silence and protection for offenses already committed, as well as for future infractions. Therefore the question to what extent such payménts were induced by fear, so as to make out the offense of extortion, was for the jury. People v. Gardner, 144 N. Y. 119 , 38 N. E. 1003 , 28 L. R. A. 699 , 43 Am. St. Rep. 741 . The order is therefore reversed, the relator remanded, the bail bond given by relator reinstated, and the writ of habeas corpus dismissed.

Cases cited

People v. Gardner 144 N. Y. 119 N.Y. 1894-12-11 p. 1136