
    George W. Didsbury, App’lt, v. J. Wesley Van Tassell, Sheriff, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Sheriffs—Liability for escape.
    Where the escape of a prisoner from the limits is very certain to subject the sheriff to a law suit, as to which he had full notice, evidence that the sheriff and under sheriff supposed him to be constantly within the limits is sufficient to warrant the jury in finding that there was no assent to such escape.
    3. Same.
    In an action for escape the defense was that the prisoner returned to the limits before the summons was served. Plaintiff's witnesses testified to a return by a later train, while others testified that it was by an earlier one. The prisoner testified that he came by the early train and went to the later one to meet a friend and mingled with the outcoming passengers. Held, that a verdict for defendant was not against the weight of evidence.
    Appeal from judgment in favor of defendant and from order denying motion for a new trial.
    Action for the escape of Daniel E. Grlynn, a prisoner under execution against the person, from the jail limits of Dutchess county.
    
      Defense, that Glynn was hack within the limits before the action was brought. The summons was served at 6.55 P. M.
    Plaintiff proved by positive testimony that he returned on a train which left Fishkill at 8.26, and arrived at Poughkeepsie at 8.55 p. M., two hours after the summons was served. Defendant’s testimony tended to prove that he returned on a train which left Fishkill at 5.49 and arrived at Poughkeepsie at 6.20 p. M., thirty-five minutes before the summons was served.
    The plaintiff asked the court to direct a verdict for plaintiff on the ground that the defendant had not established a defense under the testimony, which motion was denied and exception taken.
    The court charged that plaintiff could not recover if Glynn returned on the 6.20 train.
    The plaintiff requested the court to charge that defendant had established no defense, and directed jury to give a verdict for plaintiff, because the defendant had not shown that the various escapes were not with his assent, which request was refused, to which refusal exception was taken.
    The defendant’s attorney asked the court to charge that plaintiff must show affirmatively that the summons was served while ■Glynn was off the limits; that it is not necessary that the sheriff show affirmatively that he was within the limits.
    The court so charged, to which plaintiff excepted.
    . Me Oroslcery & Seeger, for app’lt; Wood & Morsehauser (W. D. Dickey, of counsel), for resp’t
   Pratt, J.

The principal ground for reversal urged by appellant is that it was not affirmatively proven that the prisoner left the jail limits without the assent of the sheriff. A motion for non-suit was made on that ground and denied.

The testimony on that point was not entirely satisfactory and we would be better satisfied if it had been stronger; but it can hardly be said that there was no testimony on the subject It was testified that the sheriff and under sheriff supposed the prisoner was constantly within the jail limits. And in the details of the evasion as shown by the testimony, the jury may have some grounds to satisfy them that the sheriff was not a consenting party.

There can be no presumption that a public officer is guilty of a breach of duty. And where the evasion of the prisoner was very certain to subject the sheriff to a law suit, as to which it is shown the sheriff had. in this case full notice, the jury may have thought the sheriff’s assent so improbable that slight proof convinced them it did not exist

It is also urged that the verdict is opposed to the weight of evidence. We do not so regard it. Several witnesses testified that the prisoner came upon the late train which arrived in town after the summons was served. More witnesses testified that he came upon an earlier train. The prisoner and at least one other witness testified that he arrived upon the early train, and that, expecting to meet some one to arrive by the late train, he went there and mingled with the outcoming passengers.

This does something towards showing the plaintiff’s witnesses, may have been led into error, and testified honestly and mistakenly that the prisoner arrived by the "late train.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dyk'man, J., not sitting.  