Opinion
March 11, 1959
Present — Foster, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
This is an appeal from an order made at Special Term, Supreme Court, Albany County directing that a witness, Marion Hanlon be examined under oath before trial and denying a motion of the appellant, City of Albany, to vacate the notice of examination of the said witness. The action herein arises out of an incident which occurred on October 21, 1948 when Harold W. Harrington, the son of the plaintiff was shot and killed by Newton De Marco, a police officer of the City of Albany. De Marco had been previously dispatched to the home of Marion Hanlon, who complained that she had been attacked by a young man in the vicinity of Lincoln Park. De Marco took the young lady with him in the prowl car and shortly thereafter she pointed out her alleged assailant from the vehicle. The facts from this juncture are in some dispute, but the appellant claims that De Marco placed Harrington under arrest, after positive identification by the girl, and while De Marco was leading Harrington to the prowl car he broke away and ran. That De Marco ordered him to stop several times and then fired some shots at Harrington, one of which struck and killed him. Mr. Justice BOOKSTEIN held that since Marion Hanlon made the complaint, upon which the defendant acted, she would be classed as a "hostile witness" and that "special circumstances" existed to justify the examination of the said witness before trial. That the only persons apparently who knew whether or not a felony had been committed at the time the defendant De Marco pursued and shot deceased, were the deceased and Marion Hanlon. Order unanimously affirmed, with $10 costs to respondent against appellants.