Opinion
July, 1933.
Present — Lazansky, P.J., Young, Kapper, Hagarty, Carswell, Tompkins and Davis, JJ.
Judgment reversed on the law and the facts and a new trial granted, costs to the appellant to abide the event. In our opinion, the arrest and prosecution of the plaintiff by the defendant was without probable cause. The plaintiff was entirely within his rights in destroying the fence in question upon the right of way known as Holmes lane, erected by the defendant without any right or title to the land in her. The mere fact that she had paid taxes assessed by the city of New York against this right of way and thought that she owned the property did not justify plaintiff's arrest or prosecution. Lazansky, P.J., Young, Kapper, Hagarty and Scudder, JJ., concur.
Pursuant to the provisions of rule 1 of the Rules of Civil Practice, Frederick A. Keck, Esq., residing at No. 57 Remsen street, in the county of Kings, is hereby appointed a member of the committee on character and fitness of applicants for admission to the bar in and for the Second Judicial District, in place of Hon. Peter P. Smith, appointed a justice of the Supreme Court, to serve on such committee during the pleasure of the court; such appointment to take effect July 19, 1933.