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April 19, 1968

William RICHARDS, Plaintiff,
Roger SWANSON and the City of New York, Defendants

The opinion of the court was delivered by: POLLACK


 POLLACK, District Judge.

 This is a motion for a new trial by the plaintiff pursuant to Rule 59 of the Federal Rules of Civil Procedure following a jury verdict in favor of the defendants.

 The specific grounds for plaintiff's motion are that evidence was erroneously excluded and plaintiff's opening statement was improperly curtailed. On the oral argument of the motion, it was conceded that the questioned rulings relate to discretionary control of the conduct of the trial and the present issue is whether discretion was abused.

 This case concerns a plaintiff who was arrested by the defendant Swanson, a police officer of the City of New York, for assaulting him. In the criminal court, the People failed to prove the assault beyond a reasonable doubt and plaintiff was acquitted. He then brought this suit for damages for malicious prosecution against Swanson and the City of New York and the jury herein found in favor of the defendants.

 Plaintiff had accosted a young lady late at night at first on the street and then followed her into the hallway of her apartment house. Swanson went to the entrance of the apartment to investigate the young lady's scream at plaintiff to "get out of here". Swanson confronted plaintiff and a fight ensued in which Swanson was punched in the eye by plaintiff requiring hospital treatment for him.

 It was plaintiff's contention in explanation of what occurred that Swanson was not bent on police duty but acted to protect an amorous relationship between himself and the young lady, albeit that he was a married man with four children, and that he was separated from his wife. The plaintiff was permitted to hint broadly at this claimed relationship by various circumstances suggested by answers to permitted questions. The assignment of error is that plaintiff was not allowed to go into greater detail thereon. Plaintiff argued that this relationship went to prove that he had been struck first by Swanson and that in prosecuting plaintiff Swanson failed to reveal that alleged fact to the authorities and the Grand Jury, thereby leaving plaintiff cast in a wrong light as the aggressor.

 So far as concerns the criminal prosecution, the existence or concealment of such a relationship did not adversely affect the plaintiff; he was acquitted. In this suit for malicious prosecution, brought after the acquittal in the criminal case, the competence of evidence of a motive on the part of Swanson to protect or foster a personal interest must be examined in the background of the case and the admissibility of a detailed chronicle of such relationship must be evaluated in the light of overall considerations. In United States v. Krulewitch, 145 F.2d 76, 156 A.L.R. 337, (2d Cir. 1944) Judge Learned Hand wrote that:

"* * * the competence of evidence in the end depends upon whether it is likely, all things considered, to advance the search for the truth; and that does not inevitably follow from the fact that it is rationally relevant." (at p. 80).

 In Krulewitch, relevant evidence was barred on the ground that "it was much more likely to divert, than to enlighten, the jury." (at p. 80).

 In more detail, the facts in this case were that shortly after midnight on July 3, 1962 the plaintiff found himself walking along McDougal Street in Greenwich Village behind an attractive young lady, a stranger, whom he had noticed earlier in the evening conversing with Swanson at a bar in an establishment known as the Kettle of Fish. He attempted to strike up a conversation with her as they continued walking. Within a short distance she turned abruptly into the doorway of her apartment residence. The plaintiff paused and then went into the same building. She had reached the middle of the hallway and was about to ascend the stairs when she sensed someone behind her and was startled. She turned around and saw the plaintiff who was then inside the second doorway. She immediately asked what he was doing there and ordered him to get out. Plaintiff said his purpose was only to have a conversation with her and he offered to have coffee with her. She raised her voice and told him to "Get out of here" and said she didn't want his coffee. (Plaintiff admitted that he had no business following a strange young lady into her apartment house that late at night and he testified he had not done so on any previous occasion.) He started to leave the hallway when he was confronted by the defendant Swanson, who, claiming that he had observed plaintiff's advances to the young lady as she was walking along the street, had become suspicious of his purposes and had followed the plaintiff and then hearing the young lady cry out had hastened to the doorway of the apartment house in question. Swanson was dressed that evening in plain clothes and as a policeman he was on 24 hour call in accordance with police regulations whether or not assigned to specific duty.

 Swanson testified that he asked the plaintiff what he was doing there, what was going on, and that he received the short response that it was none of his business. He replied that maybe it was his business since he was a policeman and as he reached into his back pocket to produce his shield, he was struck in the face by the plaintiff.

 The plaintiff admits that he knew that Swanson was a police officer but he places the identification by Swanson of himself as a policeman at a later point. He says that when Swanson confronted him, Swanson, without identifying himself, loosed a volley of words and started grappling and punching plaintiff and the latter said he tried "to contain", "to reason with" Swanson. He says that in the struggle ensuing they emerged on the street, and plaintiff hit Swanson once or twice and only then did Swanson announce that he was a policeman, causing plaintiff to drop his hands to his side in amazement. Whereupon, says plaintiff, Swanson hit him "and the fight resumed".

 Someone phoned for police, and they came in several squad cars and plaintiff was placed under arrest by Swanson, taken to the station house and booked for felonious assault (later reduced ...

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