Curry v. Nassau Electric Railroad — 198 N.Y. 514

Majority

p. 514

Patrick Curry, Respondent, v. The Nassau Electric Railroad Company, Appellant.

Headnote

Curry v. Nassau Electric R. R. Co., 126 App. Div. 934 , afflrmed.-

(Argued February 18, 1910;

decided March 1, 1910.)

Appeal from a judgment of the Appellate Division .of the Supreme Court in the second judicial department, entered May 14, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a

p. 515

new trial in an action to recover for an assault alleged to have been committed by defendant’s employees in ejecting plaintiff from a street car.

D. A. Marsh and George D. Yeomans for appellant.

Henry F. Cochrane and Harry J. Walsh for respondent.

The judgment should be affirmed, with costs, upon the ground that the evidence presented a questionof fact for the jury on the question whether the defendant’s servants used excessive and unnecessary force in removing the plaintiff from the defendant’s car and that, hence, the motion for a nonsuit was properly denied; and that the question argued by defendant’s counsel, as to the obligation of the defendant’s employees to accept the five-dollar bill tendered and give change therefor is not raised by any exception which this court can review.

Cullen, Ch. J., Gray, Edward T. Bartlett, Haight, Yann, Werner and Hiscock, JJ., concur.

Judgment affirmed.