Opinion
November 17, 1954.
Present — McCurn, P.J., Vaughan, Kimball, Wheeler and Van Duser, JJ.
Judgment reversed on the law and facts and a new trial granted, with costs to appellant to abide the event. Memorandum: At the time of the assault Boryszewski was acting within the scope of his employment as a police officer of the City of Rochester and under the evidence it was for the jury to determine whether plaintiff's arrest and detention for alleged intoxication was justifiable and whether police officer Boryszewski while taking plaintiff to the police station inflicted an unjustifiable injury upon plaintiff. ( McCarthy v. City of Saratoga Springs, 269 App. Div. 469; Young v. Village of Potsdam, 269 App. Div. 918, affd. 297 N.Y. 712; De Wald v. Seidenberg, 297 N.Y. 335; Daniels v. City of Syracuse, 200 Misc. 415.) All concur. (Appeal from a judgment dismissing the complaint in an action for assault and false arrest.)