Opinion
October 22, 1951.
Present — Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ. [See post, p. 665.]
In an action to recover damages resulting from the death of plaintiff's intestate, the evidence adduced disclosed only that at the time and place described in the complaint the individual defendant, a police officer employed in the police department of the defendant city, acting within the scope of his authority and duty, pointed a gun at decedent and shot him. Four shots were fired, and decedent died of wounds in his chest and abdomen. No attempt was made by plaintiff or defendants to establish in greater detail the circumstances surrounding the shooting, and at the conclusion of the evidence the trial court directed a verdict in favor of plaintiff. Judgment unanimously affirmed, with costs. In our opinion the evidence adduced was sufficient to establish, prima facie, a willful and intentional killing, and a presumption arose therefrom that it was committed without justification or just cause. The proof was sufficient, in the absence of evidence on the part of the defendants to meet this presumption, to satisfy the burden of proof imposed on the plaintiff and to overcome any presumption which might otherwise have arisen that the officer acted lawfully. (Cf. People v. Sandgren, 302 N.Y. 331; People v. McCarthy, 110 N.Y. 309, and Cassidy v. Cady, 49 Misc. 478.)