Brown v. Sibley, Lindsay & Curr Co.

Judgment affirmed, without costs of this appeal to any party. All concur, except Halpern, J., who dissents and votes for reversal and a new trial in the following memorandum: The plaintiff established a prima facie ease and therefore the dismissal was improper. (Stevens v. O’Neill, 51 App. Div. 364, affd. 169 N. Y. 375; McLoughlin v. New York Edison Co., 252 N. Y. 202, 205; 1 Harper & James, Law of Torts, p. 229; cf. Gill v. Montgomery Ward & Co., 284 App. Div. 36.) Blumenfeld v. Harris (3 A D 2d 219, affd. 3 N Y 2d 905) upon which the trial court relied, is distinguishable on its facts. The Appellate Division said: “plaintiff, an employee of defendants, freely and voluntarily, and in the course of his regular duties entered the back room of the store in which he claims he was detained unlawfully ”. Furthermore, that ease was tried without a jury. The trial court denied the defendant’s motion to dismiss as a matter of law at the close of the ease. The issue of imprisonment was decided "by the trial court as a question of fact in favor of the plaintiff; the trial court’s findings were reversed and the issue was decided as a question of fact in favor of the defendants by the Appellate Division and new findings were accordingly made. (Appeal from judgment of Monroe County Court dismissing the complaint at the close of plaintiff’s ease in an action (1) for damages for alleged false imprisonment and (2) to recover money alleged to have been paid to defendants by plaintiff under duress.) Present — Bastow, J. P., Goldman, Halpern, MeClusky and Henry, JJ.