Delmage v. Crow — 49 N.Y.S. 1004

Majority

p. 1004

(22 Misc. Rep. 511.)

DELMAGE v. CROW.

(City Court of New York, General Term.

February 7, 1898.)

Headnote

1. Assault—Action for Damages—Pleading.

A complaint for assault and battery may properly allege as an incident of the assault the speaking of slanderous words where the purpose thereof is to show the malicious intent of defendant, and the complaint does not thereby embrace an action for slander.

2. Release—Duress.

Evidence that a young woman, in a strange land, executed a release on being informed that, unless she signed it,, she would be kicked off the car, is sufficient to submit to the jury the question of duress in executing the contract.

8." Appeal—Review of Evidence.

Where the evidence is conflicting, the verdict will not be disturbed on appeal.

Appeal from trial term.

Action by Rachel Deimage against Moses R. Crow. From a judgment for plaintiff, defendant appeals.

Affirmed.

p. 1005

Argued before FITZSIMONS, C. J., and McCARTHY and O’DWYER, JJ.

Franklin Bien, for appellant.

Wilder & Anderson, for respondent.

The complaint herein is certainly one for assault and battery, and the words which defendant’s counsel claims set forth a cause of action for slander were not, in our opinion, pleaded for any such purpose, but merely allege an incident of the assault, and were set out for the purpose of showing the malicious and evil intent and design of the defendant towards the plaintiff at the time he committed the assault. Viewed in that light, we think that such words were properly embraced within the complaint, and it was proper and permissible for the trial justice to permit the utterance to be testified to upon the trial, so as to enable the jury to fix the proper rate of damages to be awarded to the plaintiff.

As to the alleged release, we think it was proper for the trial justice to submit to the jury the question, “Was it obtained under duress?” It appears that the plaintiff was informed that, unless she signed the same, she would be kicked off the car. She was a young woman, in a strange land, among strangers, apparently with no one holding out a helping hand to her, and knowing well what would happen to her if she did not sign said paper. I think, under the circumstances and the threat made against her, it was proper to let the jury determine, as a matter of fact, whether or not, in signing said paper, she acted freely or was under duress. We agree with the defendant’s attorney, that, under the evidence, the jury might just as easily have decided in defendant’s favor as in plaintiff’s favor, because the evidence was flatly contradictory; but, as they chose0to believe the plaintiff and her witnesses, we shall not disturb their conclusions.

We affirm the judgment, with costs. All concur.'