
    George W. Wilkes, Respondent, v. City of New York, Appellant.
   Action to recover damages for personal injuries sustained when respondent was struck by a bullet fired by a police officer, employed by appellant, at a third person whom the officer was attempting to arrest. Judgment in favor of respondent affirmed, with costs. No opinion. Nolan, P. J., MaeCrate and Schmidt, JJ., concur; Adel and Wenzel, JJ., dissent and vote to reverse the judgment and to grant a new trial, with the following memorandum: In this action it is alleged, and the jury has found, that a police officer, appellant’s employee, by his negligence, shot and injured respondent. The verdict is against the weight of evidence and should be reversed. The police officer, a man of twenty-seven years’ experience, was attacked when he remonstrated with a drunken and disorderly citizen. The police officer was 5 feet 8 inches tall and his attacker 6 feet 2i/2 inches tall and powerful. The officer was twice thrown to the sidewalk and seriously injured despite the interposition of bystanders who tried to come to his assistance. He spent ten days in a hospital after the assault and was incapacitated for a period of twenty-four days. The shooting occurred after he had been buffeted about and was in a dazed condition. Under these circumstances he was compelled to use his gun to repel his assailant. The fact that an innocent bystander was struck was most unfortunate, but, under the circumstances disclosed in the record, did not constitute negligence on the part of the City of New York.  