
    Pamela J. Noschese, Respondent, v City of New York, Appellant.
   —Judgment, Supreme Court, Bronx County, entered December 27, 1974, unanimously modified, on the law and on the facts, and a new trial granted to defendant-appellant solely on the issue of damages on the cause of action for assault, with $60 costs and disbursements of this appeal to abide the event, unless plaintiff-respondent within 20 days of service upon her by defendant-appellant of a copy of the order entered herein, with notice of entry, serves and files in the office of the clerk of the trial court, a written stipulation consenting to reduce the verdict on the cause of action for assault to $1,500 and to the entry of an amended judgment in accordance therewith. If plaintiff-respondent consents to the reduction, the judgment as so amended and reduced is affirmed, without costs and disbursements. Defendant in its brief concedes "that in a proper case a jury can find an arrest was proper and that in effecting that arrest an unlawful assault was committed.” The jury’s determination that an assault was committed upon plaintiff when an officer who arrested her and her friends at a beach waved and pointed a loaded revolver at her was not inconsistent with its verdict for defendants on plaintiff’s causes of action for false arrest and false imprisonment. Accordingly, the trial court properly refused to set aside the verdict upon the cause of action for assault. The trial court correctly concluded that the verdicts for defendant upon the causes of action for unlawful arrest and unlawful imprisonment were inconsistent with the verdict in favor of plaintiff upon the cause of action for malicious prosecution, and acted properly in setting said verdicts aside, severing them from the cause of action for assault, and ordering their retrial. We are of the opinion, however, that the award of damages in the sum of $5,000 by the jury for the assault was excessive and is not warranted on this record. Concur—Markewich, J. P., Kupferman, Lupiano, Birns and Lane, JJ.  