The jury were left in doubt, whether, if a policeman accepted free transportation, such' act was a crime, or whether the idea of a criminal offense came merely from the words “ grand jury” and “immunity.” I think it should have been made clear to the jury, what is here conceded, that for a policeman to take a pass was not a crime. Hence plaintiff could have been asked on cross-examination what violation of law his complaint intended. After counsel in his summing up read to the jury from article 13, section 5, of the Constitution, the court should have dispelled this uncertainty by granting the instruction asked. This instruction was material to the amount of damages. A reference to an investigation by the grand jury, in these days especially, would signify little, as compared with a direct charge of an act within the Penal Law. Hence I dissent.
Jenks, P. J., concurred.
Judgment and order affirmed, with costs.