Opinion
February 23, 1967
Appeal from the Onondaga Trial Term.
Present — Williams, P.J., Bastow, Goldman, Henry and Del Vecchio, JJ.
Judgment unanimously reversed on the law and facts and a new trial granted, with costs to the appellants to abide the event. Memorandum: Defendants appeal from a judgment, entered on a court directed verdict, which awarded plaintiff jury assessed damages sustained by him as a result of his arrest under a court order intended to be executed on plaintiff's father whose name is the same as plaintiff's name. The order was valid on its face, the court issuing it had jurisdiction to do so and it was the duty of defendants to execute it. ( People v. Briggs 19 N.Y.2d 37; Nastasi v. State of New York, 275 App. Div. 524, affd. 300 N.Y. 473.) Where, as here, there are two persons to whom the name applies with complete accuracy the officer is privileged to arrest the one whom, after using due diligence, he reasonably believes to be the person intended. ( Darlow v. State of New York, 207 Misc. 124; 22 N.Y. Jur., False Imprisonment, § 19; Restatement, Torts 2d, § 125; 127 A.L.R. 1057; 10 ALR 2d 750.) The evidence presented questions of fact for the jury as to whether defendant Korcynski used due diligence, whether he reasonably believed that plaintiff was the person intended by the order, and whether plaintiff knowingly caused the arresting officer to believe that he was the person intended by failing to forthrightly state that he was the son and not the father intended by the order. The trial court, therefore, erred in directing the verdict upon which the judgment was entered.