
    James Woodson, Appellant, v. New York City Housing Authority, Respondent, et al., Defendant.
    Argued April 26, 1961;
    decided May 25, 1961.
    
      
      James L. R. Costello and Seymour S. Brewer for appellant.
    I. The Trial Judge properly exercised the power of the judiciary in ruling, as a matter of law, that defendant New York City Housing Authority’s agent, Police Officer Davies, was guilty of a false arrest, assault and battery, and false imprisonment. (Outhouse v. Baird, 121 App. Div. 556; People v. Tedesche, 3 A D 2d 220; People v. Massey, 7 A D 2d 850; People v. Dority, 282 App. Div. 995; People v. Cherry, 307 N. Y. 308; Henry v. United States, 361 U. S. 98.) II. There was and is no question of fact concerning the circumstances surrounding the unlawful arrest, savage assault and battery, and false imprisonment of plaintiff, James Woodson. (Denton v. Carroll, 4 App. Div. 532; Hull v. Littauer, 162 N. Y. 569; Salomone v. Yellow Cab Corp., 242 N. Y. 251; Littlefield v. Lawrence, 83 App. Div. 327; People v. Tuczkewitz, 149 N. Y. 240; Goldman v. Brooklyn Hgts. R. R. Co., 129 App. Div. 657.)
    
      Alexander E. Rosenthal and Irving Segal for respondent.
    I, No liability attaches to the Authority for the acts of Officer Davies which were beyond the scope of his employment. At the time and place of his altercation with plaintiff, Davies acted as a peace officer and as an ad hoc employee of the City of New York. (People v. McCarthy, 188 Misc. 132; Biniewski v. City of New York, 267 App. Div. 108; Woodhull v. Mayor of City of N. Y., 150 N. Y. 450; Tyson v. Bauland Co., 186 N. Y. 397; Du Pont Rayon Co. v. Henson, 162 Tenn. 394; Sharp v. Erie R. R. Co., 184 N. Y. 100; Taub v. New York Bd. of Fire Underwriters, 238 App. Div. 587; Mott v. Consumers’ Ice Co., 73 N. Y. 543; Sauter v. New York Tribune, 305 N. Y. 442; Muller v. Hillenbrand, 227 N. Y. 448; Bracco v. Arro Sportswear Co., 2 A D 885, 3 N Y 2d 726; Oneta v. Tocci Co., 271 App. Div. 681, 297 N. Y. 629; Granatelli v. Kalmanowitz, 268 App. Div. 90.) II. Plaintiff’s personal injuries were not the result of an unprovoked assault but originated in his refusal to comply with the lawful commands of Officer Davies. (People v. Feiner, 300 N. Y. 391, 340 U. S. 315.) III. The charge was inadequate in not setting forth the principles of law applicable to an action for assault and battery, false arrest and false imprisonment. (Molnar v. Slattery Contr. Co., 8 A D 2d 95; Clark v. Iceland S. S. Co., 6 A D 2d 544.) IV. The trial court committed error when he charged the jury that, as a matter of law, plaintiff was wrongfully assaulted, falsely arrested and falsely imprisoned. (Marks v. Baltimore & Ohio R. R. Co., 284 App. Div. 251.) V. The trial court committed further error in his instructions to the jury. VI. The summation of plaintiff’s counsel exceeded the bounds of propriety and fair argument. (Abbate v. Solan, 257 App. Div. 776; Gutin v. Mascali, 22 Misc 2d 1038; Kohlmann v. City of New York, 8 A D 2d 598; Cohon & Co. v. Pennsylvania Coal & Coke Corp., 10 A D 2d 667; Zaulich v. Thompkins Sq. Holding Co., 10 A D 2d 492.)
   Froessel, J.

In this action to recover damages for assault, false arrest and false imprisonment, defendant rested entirely on plaintiff’s case. The testimony of plaintiff, which is fully corroborated by that of the Avitness Morris, does not give rise to conflicting inferences, is not contradicted by direct evidence, is not opposed to the probabilities, nor in its nature surprising or suspicious. Under these circumstances, the trial court properly withdrew from the jury the issues of assault, false arrest and imprisonment (Hull v. Littauer, 162 N. Y. 569, 572; Der Ohannessian v. Elliott, 233 N. Y. 326, 329; St. Andrassy v. Mooney, 262 N. Y. 368; 6 Carmody-Wait, New York Practice, p. 714; cf. Piwowarski v. Cornwell, 273 N. Y. 226, 229; Ferris v. Sterling, 214 N. Y. 249, 253; Salomone v. Yellow Taxi Corp., 242 N. Y. 251, 257-258; Kavanagh v. Wilson, 70 N. Y. 177,179).

Moreover, since the arrest and imprisonment of plaintiff were admittedly without a warrant, the presumption arises that such arrest and imprisonment were unlawful, and the burden of proving justification rested on defendant (Bonnau v. State of New York, 278 App. Div. 181, 182, affd. 303 N. Y. 721; Clark v. Nannery, 292 N. Y. 105, 108; Schultz v. Greenwood Cemetery, 190 N. Y. 276, 279). Defendant, however, made no attempt to meet this burden, and “ by no rational process could the trier of the facts base a finding in favor of the defendant [on these issues] upon the evidence here presented” (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241, 245). The court, therefore, properly charged as a matter of law that these torts had been committed. Furthermore, since defendant merely pleaded a general denial, and no affirmative defense, it would have been precluded from introducing evidence of justification even if it had sought to do so (Peterson v. New York Cons. R. R. Co., 230 N. Y. 566; Gill v. Montgomery Ward & Co., 284 App. Div. 36, 39).

The uncontradicted testimony presented by and on behalf of plaintiff, which in these circumstances must be deemed conclusive, likewise left no question of fact for the jury as to the assault (Der Ohannessian v. Elliott, supra; St. Andrassy v. Mooney, supra). The extent of the assault merely went to the question of damages, and that issue was properly left to the jury, together with the question of whether Davies acted within the scope of his authority as defendant’s agent.

Accordingly, the order appealed from should be reversed, and the matter remitted to the Appellate Division, pursuant to sections 602 and 606 of the Civil Practice Act, for determination of the questions of fact passed upon by the jury and raised in that court, with costs to abide the event.

Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Foster concur.

Order reversed, etc.  