189 A.D. 196 | N.Y. App. Div. | 1919
The complaint contains two causes of action, the first for an alleged false imprisonment of the plaintiff by defendant on August 6, 1918, and the second for malicious prosecution based upon the same transaction. It appears that the defendant is the owner of certain premises in the city of New York, at South Beach, Staten Island, on the shore of the lower bay, his title extending to high-water mark. There is no survey or map printed with the papers. The defendant’s title deed apparently conveyed to him the fee down to high-water mark, with all the rights of his grantor in the land below or outside high-water mark; there is a reference in one of his deeds to a grant of land under water from the People of the State of New York to one McRoberts, and it is recited that the property was conveyed to defendant by persons named McRoberts, but whether defendant had any record title to the land fronting his premises below high-water mark is not disclosed upon the record here. His property has a frontage of 638 feet on the shore, and is occupied by a hotel, dance hall, bathhouses and a number of summer cottages. On the day in question the plaintiff, who resided in a bungalow in the neighborhood but not on defendant’s land, went to the beach with a woman friend and three children. They erecte'd a shelter or tent' by driving posts into the sand, to which they fastened umbrellas and between the umbrellas spread a blanket. The two ladies and the children were in bathing suits, it was a warm summer day, and their purpose in locating where they did was to go in bathing and to camp out under the shelter. There was a conflict between the parties as to
The learned trial judge charged the jury that if the plaintiff and her companions were above high-water mark, they were on defendant’s premises and he had a right to eject them, using force if necessary. He instructed them that if plaintiff was a trespasser upon defendant’s property she was guilty of a misdemeanor, and if the crime was committed in the presence of the defendant or the police officer the arrest was lawful. But he said to them that the plaintiff contended that she was at a point on the beach between high and low-water mark, and continued, “ If that be the fact, as established by the testimony, then the defendant would have no greater rights or any greater privileges at the point where this took place than would the plaintiff. The rights of the plaintiff and defendant would be equal at any point on the beach front between high and low-water mark. All have equal rights on the beach front between high and low-water mark. The public own the land between high and low-water mark, and their rights cannot be alienated. So, if she was between high and low-water mark with her umbrella, her blanket and the other things that were there, she had just as much right to be there as did Mr. May, and Mr. May had no right to put her off of those premises. Her rights were equal to his, and any one of you would have the same rights, as any other person on the beach front between high and low-water mark.” Later on, the learned trial judge'said to the jury: “The plaintiff contends the property on which she was arrested was the land between high and low-water mark; if she has
At the close of the charge the counsel for plaintiff requested the court to charge as follows: “ May I ask your Honor to charge that if the jury finds that the plaintiff was upon the fore-land above high-water mark to which the defendant had title as owner in fee, that even if she was there without his permission, the mere fact that she refused to move off did not give the defendant the right to arrest her on the charge of disorderly conduct; that being a trespass in violation of law must be with criminal intent. The Court: I decline to so charge. Mr. Handy: I will strike out the last part and leave it as it was — strike out about the trespass in violation of law, and leave it as it was, your Honor, and ask your Honor to charge that way. The Court: I so charge. Mr. Mitchell: I except to that, if your Honor please, and call your attention to the fact that your Honor has already charged from the Penal Code, section 2036. It simply says a person who intrudes upon any lot or piece of land without authority from the owner — makes it a misdemeanor. Mr. Handy: Hewitt v. Newburger (141 N. Y. 538) and People v. Stevens (109 N. Y. 159) hold it iriust be with criminal intent. The Court: I charge as you request. Mr. Mitchell: I will take an exception.” It will be perceived that the net result of the chsCrge of the learned trial judge was practically the direction of a verdict for the plaintiff. Because he had already instructed them that if the plaintiff was between high and low-water ma'rk the defendant had no right to interfere with her, and in granting this last request he told the jury that even though she was on the land owned by defendant in fee without his permission, and refused to move off, still he had no right to arrest her. This was directly contrary to his previous instruction that if plaintiff was on the premises of the defendant he had the right to eject her, using force if necessary, and that if plaintiff and her companions were committing any act that could be construed as disorderly conduct tending to a breach of the peace he had a right to cause that arrest. He had already instructed them:." If the plaintiff was arrested while trespassing upon the property of the defendant, and
At the close of the charge the counsel for the defendant, appellant, excepted to the court’s definition of the relative rights of plaintiff and defendant between high and low-water mark, “ in view of the deeds in question, the defendant contends the right not only to high and low-water mark, but also under common law that the plaintiff had simply the right to pass and repass.without any other rights on it,” and defendant also excepted to the submission to the jury of the question of false imprisonment and malicious prosecution. Motions to dismiss the complaint were made at the close of plaintiff’s case and again at the close of the entire case and denied, the defendant excepting. The learned trial judge charged the jury that below high-water mark upon the shore the rights of the plaintiff and defendant were equal and that all have equal rights on the beach front. He said to the jury: “ So, if she was between high and low-water mark with her umbrella, her blanket and the other things that were there, she had just as much right to be there as did Mr. May, and Mr. May had no right to put her off of those premises.” But there is grave doubt whether the plaintiff or Mr. May or any one else had a right, as matter of law, to erect a tent or structure of this description on the foreshore, blocking the passage of the public along the beach. The public right is to pass and repass when the tide is out and to sail and fish
The judgment and order should be reversed and a new trial granted, with costs to abide the event.
Jenks, P. J., Mills, Rich and Jaycox, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.