Dunlap v. Ross — 43 N.Y. St. Rep. 509

Majority

p. 509

Martin Dunlap, Resp’t, v. William Ross, Sr., and William Ross, Jr., App’lts.

Supreme Court, General Term, Fourth Department,

Filed February 13, 1892.)

Headnote

Assault—Damages.

In an action for assault the jury, on conflicting evidence, found a verdict in favor of plaintiff for $100. It was claimed to he excessive, as plaintiff came out of the fight with a black eye only. Held, that the question was one for the jury to determine, and that this court would not interfere.

Appeal from a judgment for $224.37 damages and costs, entered in Jefferson county March 20, 1891, on the verdict of a jury, and from an order denying a motion for a new trial.

Thomas F. Kearns, for app’lts; Breen Brothers, for resp’t

This action was for an assault and battery. The respondent was awarded $100 damages. The appellants contend that the evidence was insufficient to justify a verdict for that amount. Their claim is, that the plaintiff “ came out of the fight with a black eye only,” and, hence, that the damages were excessive.

The difficulties with this claim are two-fold: 1. The jury under the evidence may have found that the plaintiff did not escape with the injury mentioned, but that his injuries were of a much more serious character. 2. If the injury sustained was that indicated by “ a black eye only,” still the amount of damages in such a case would be for the jury, and we know of no rule that, would justify us in holding that $100 was excessive even in such a case.

The evidence presented a fair question of fact Upon that evidence the jury found .for the plaintiff and awarded him as damages the amount named. The verdict should not be disturbed'

p. 510

either upon the ground that it was against the weight of the evidence, or that the damages were excessive.

We have examined the several rulings to which our attention has been called by the brief of the counsel for the appellants, but have found none that would justify a reversal of the judgment or that require special discussion.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.