278 A.D. 996 | N.Y. App. Div. | 1951
Plaintiff hag appealed from a judgment of the Warren Trial Term q£ the Supreme Court in favor of defendant, which judgment was entered pursuant to a verdict directed by the cpurt pnd also from an order denying his motion to set aside the verdict. The action is one for false imprisonment. Op May 23, 1948, plaintiff and a man named Burch spent the afternoon fishing in Cook Pond in the town of Thurman. During the day defendant, who was a game warden, and a companion named Bedell, who was also a game warden, approached plaintiff and his companion. Defendant ayrestpd plaintiff without a warrant and .charged him with “ taking and possessing one bl&ck b.ass fro,m the waters .of Cook Pond which is a misdemeanor. Defendant’s answer admitted that fact. The plaintiff was tried on (bri charge and was acquitted by the jury. Plaintiff testified that he had been guilty of no violation of law whatever and this testimony was undisputed. Burch corroborated plaintiff’s testimony. On the trial, defendant testifiej that he had no personal knowledge that plaintiff caught or possessed a bass. There was no proof whatever to indicate that plaintiff committed any misdeipeanor in the presence pf defendant. The only proof in the record to indicate that there was any violation of the Conservation Law is that, defendant saw Burch “ reach down and pick up an object and heave it into the hushes behind him”. Bedell testified that he found a black bass which was alive ip the bushes about fifteen feet from the ledge where the plaiutiff aud Ms compaMpn were fishing. After the cpurt directed the verdict in favor of defendant, the jury retired apparently tp consider the ease. Later, at the direction pf the court, they returned pnd stated that they were unable to come to a conclusion. The jury again retired to further consider the case and later the