Patterson v. McIlroy — 17 N.Y.S. 956

Majority

p. 956

Patterson, Appellant, v. McIlroy, Respondent.

(Superior Court of New York City, General Term.

January 11, 1892.)

Headnote

Appeal from jury term.

Action by Thomas G. Patterson against William McIlroy for an assault. Verdict and judgment for defendant, and order denying motion for a new trial.

Argued before Freedman and McAdam, JJ.

Palmer & Boothby, for appellant. Howe & Hummel, for respondent.

The appeal being from the judgment only, the questions of fact are not open for review. The action was brought to recover damages for an assault alleged to have been committed by the defendant upon the plaintiff. The issues were submitted to a jury, and determined by them in favor of the defendant. The errors complained of relate to the charge of the trial judge and his refusals to charge otherwise. Upon an examination of the evidence bearing upon this branch of the case, none of the exceptions appears to be tenable. In view of the testimony given by the defendant, plaintiff’s requests for unqualified instructions to the effect that, as matter of law, the defendant had no right to return to plaintiff’s private office after he had been ordered to leave it and had started to do so, and that the plaintiff had a right to use the necessary force to eject the defendant, were too broad. The judgment should be affirmed, with costs.