Greene v. Bowery Savings Bank

274 A.D. 777 | N.Y. App. Div. | 1948

Judgment and orders appealed from granting summary judgment to the defendant-respondent dismissing the complaint unanimously reversed, with costs to the appellant, and defendant-respondent’s motion for summary judgment denied. Plaintiff was arrested on September 25, 1945, in a midtown hotel owned and operated by defendant-respondent in the borough of Manhattan, city of New York, charged with violation of clause (c) of subdivision 4 of section 887-of the Code of Criminal Procedure as a vagrant. She was arrested without a warrant, according to her contention, by a police officer in conjunction with, or at the instance of, the hotel detective (cf. Code Crim. Pro., § 177, subd. 1; § 183, subd. 1; McLoughlin v. New York Edison Co., 252 N. Y. 202; Johnston v. Bruckheimer, 133 App. Div. 649; Sanders v. Rolnick, 188 Misc. 627). The adjournment of her hearing by the magistrate before whom she was brought to .October 1, 1945, on which date the charge was dismissed, did not establish the existence of probable cause under such authorities as Hopkinson v. Lehigh Valley R. R. Co. (249 N. Y. 296), Stern v. Rindeman (247 App. Div. 345) or Lowande v. Eisenberg Farms, Inc. (260 App. Div. 48, affd. 286 N. Y. 634). Neither has it been conclusively established, in the face of plaintiff’s affidavit to the contrary, that the defendant-respondent in the person of the hotel detective did not take part in her arrest (cf. Freedman v. New York Soc. for Suppression of Vice, 248 App. Div. 517, affd. 274 N. Y. 559). Triable issues are presented. Present — Peck, P. J., Cohn, Callahan, Van Voorhis and Shientag, JJ.