Opinion
January 6, 1932.
Appeal from Supreme Court of Erie County.
Gordon Steele [ Peter A. Schultz of counsel], for the appellants.
Charles Joseph McDonough, for the plaintiff, respondent.
Charles L. Feldman, for the defendant, respondent.
Present — SEARS, P.J., CROUCH, TAYLOR, EDGCOMB and THOMPSON, JJ.
The verdict upon which the judgment appealed from was entered is inconsistent, in that it finds, upon the same evidence, that defendant Lutzman had probable cause to believe plaintiff was drunk, and that appellants did not. The court was requested to charge that if Lutzman had probable cause to make the arrest, there could be no recovery against any defendant in the case. A denial of that request was error, and apparently led directly to the inconsistent verdict. ( Gray v. Brooklyn Heights R.R. Co., 175 N.Y. 448; Brothers v. Village of Ilion, 224 App. Div. 688; Ziemann v. Miller, 217 id. 819; Rowell v. Hutzler Lumber Co., Inc., 228 id. 158; affd., 255 N.Y. 581.)
We think the decision in Price v. Ryan ( 255 N.Y. 16) has no application to the situation here. There the appellant, at the time the erroneous ruling was made, had no existing right or interest which was affected by the ruling. Here the contrary is true.
The judgment and order should be reversed upon the law and the facts as to the appellants, and a new trial granted, with costs to the appellants to abide the event.
All concur.
Judgment and order reversed on the law and facts as to appellants and a new trial granted as to appellants, with costs to the appellants to abide the event.