Opinion
July 14, 1958
In an action to recover damages for unlawful assault by alleged police officers, and for other relief, the appeal is from a judgment dismissing the complaint, after defendant rested upon the plaintiffs' case, on the ground that the evidence was insufficient to warrant submission to the jury of the issue as to whether the individuals, who assaulted the plaintiff Edward Brisbane, were police officers acting within the scope of their employment. Judgment reversed and a new trial granted, with costs to abide the event. It was error to dismiss the complaint. In our opinion the evidence was sufficient prima facie to permit an inference by the jury that the assaulters were police officers and that at the time of the assault they were acting within the scope of their employment ( Osipoff v. City of New York, 286 N.Y. 422). As there is to be a new trial, it should also be noted that it was error for the trial court to exclude the admission, contained in the affirmative defense pleaded in the answer, to the effect that the assaulters were policemen acting within the scope of their duties. This admission should not have been excluded, in spite of the fact that, in denials addressed to the paragraphs of the complaint, defendant denied that the assaulters were policemen ( Kraus v. Birnbaum, 200 N.Y. 130). Nolan, P.J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur.