p. 740(Supreme Court, Appellate Division, Third Department.Headnote
1. Appeal and Error <@=215—Reservation of Grounds op Review—Necessity op Exceptions.Though no exception is taken to the charge, if it is wrong in its essential elements, the Appellate Division has power to interfere.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. <@=215; Trial, Cent. Dig. § 683.]
2. Appeal and Error <@=221—Reservation of Grounds of Review—Scope of Objection.
Where defendant in an action for assault did not object to the submission of the question of the measure of damages, he consented, and could not contend on appeal that there was no ground for punitive damages.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. <j§ 1353-1356, 1359, 1361-1363, 1365-1367; Dec. Dig. <@=221.]
<£=For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Schenectady County Court.
Action for assault by Mary Fox against Isadora M. Brown. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Argued before SMITH, P. J., and KFDDOGG, DYON, HOWARD, and WOODWARD, JJ.R. J. Cooper and Frank Cooper, both of Schenectady, for appellant. Eugene Gibney, of Schenectady, for respondent.
[1] The complaint alleges that the defendant conducted a jewelry store and pawnshop, that she entered premises for the purpose of negotiating a loan, and that while thus lawfully upon the defendant’s premises, at his invitation, she was grossly assaulted, resulting in a serious nervous shock. There was a clear and decided conflict of evidence. The learned trial court stated frankly to the jury that they were to- determine which of these two persons
p. 741told the truth, and that one of them was deliberately falsifying the facts. No exception was taken to the charge, which fairly stated the issues to be determined by the jury; but upon this appeal we are urged to consider various statements of the trial judge as evidencing error. We áre unable to discover anything in the charge which shows any unfairness to the defendant. While there is no doubt of the power of this court to interfere where the charge is wrong in its essentia] elements, we are fully-persuaded that the case now before us does not call for action.
[2] We are of opinion that the defendant, having consented, by not objecting," to the submission of the question of the measure of damages to the jury, is not now in a position to contend that there is not ground for punitive damages. If this plaintiff was assaulted, as she says she was and as the jury has believed she was, then there was a case for punitive damages. The court did not err in this regard, even though the question were actually here for determination.
We are equally persuaded that the court did not err in reference to the hypothetical question asked of Dr. Foley, though it does not seem to be necessary to enter into a discussion of the same. We have followed the defendant’s suggestions through, but do not find any reason for disturbing the judgment.
The judgment and order appealed from should be affirmed, with costs.
SMITH, P. J., and KELLOGG and LYON, JJ., concur. HOWARD, J., dissents.