Opinion
March 1, 1965
In an action to recover damages for: (a) assault and battery (first cause of action); (b) false arrest and imprisonment (second cause of action); and (c) malicious prosecution (third cause of action), the parties cross-appeal as follows: The defendant City of New York appeals from so much of a judgment of the Supreme Court, Kings County, entered January 22, 1964 after trial, upon a jury's verdict, as is in plaintiff's favor, in the sum of $15,000 upon the cause of action for the false arrest and imprisonment, and in the sum of $10,000 upon the cause of action for the malicious prosecution. The plaintiff appeals: (1) from so much of the judgment as dismissed his first cause of action for the assault and battery; and (2) from two orders of said court, entered respectively January 20, 1964 and January 27, 1964, which denied his motions: (a) to set aside the verdict insofar as it is in favor of the defendant with respect to said first cause of action; and (b) for judgment on said cause of action, pursuant to CPLR 4404. On the defendant city's appeal: Judgment, insofar as appealed from, reversed on the law and the facts; the second and third causes of action are severed; and a new trial granted as to such causes of action, with costs to abide the event, unless, within 30 days after entry of the order hereon, plaintiff shall serve and file a written stipulation consenting: to reduce to $7,500 the amount of the verdict on his cause of action for false arrest and imprisonment; to reduce to $2,500 the amount of the verdict on his cause of action for malicious prosecution, and to modify the judgment accordingly; in which event the judgment, as so reduced and modified, and insofar as appealed from, is affirmed, without costs. On plaintiff's appeal: Judgment, insofar as appealed from, and orders, affirmed, without costs. The record presented issues of fact for determination by the jury with respect to each of the three causes of action. In our opinion, the jury's verdict in defendant's favor upon the first cause of action for assault and battery was not inconsistent with its verdict in plaintiff's favor upon the second cause of action for false arrest and imprisonment and upon the third cause of action for malicious prosecution. Upon the basis of all the facts disclosed by this record, and in view of the jury's verdict in favor of the defendant on the first cause of action, we find that with respect to the other two causes of action the amount of the jury's verdict was excessive, at least to the extent indicated. Beldock, P.J., Christ, Hill, Rabin and Benjamin, JJ., concur.