Townsend v. Stewart — 53 N.Y. St. Rep. 147

Majority

p. 147

William H. Townsend, Resp’t, v. Albert Stewart, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 9, 1893.)

Headnote

Assault—Submission of questions to jury.

Plaintiff, who was a bonk agent, drove into defendant’s premises pursuant to an appointment, as he claimed, and upon being ordered out refused to go, whereupon an affray occurred in which he was hurt. The evidence as to whether plaintiff was properly on the premises by permission or as a

p. 148

trespasser, or so remained thereon, and as to which of the parties committed ■ the first assault was conflicting. Held, that these were questions of fact for the jury, and were properly submitted to them.

Appeal from judgment entered upon the verdict of a jury, and from order denying a motion for a new trial upon the minutes of the trial judge.

Action for assault. Plaintiff claimed that he drove into defendant’s yard in pursuance of an appointment to call in relation to the sale of a book; that defendant immediately seized the reins and tied the horse with them to the fence, and pulled plaintiff from the carriage, took his whip and struck him with it, breaking the bones in his hand. Defendant’s evidence tended to show that plaintiff was to call the following week; that -when he called lie told him he would have nothing to do with the book; that plaintiff became insulting and defendant ordered him off the premises ; that plaintiff would not go and struck at defendant with his whip, saying that if he was not afraid of the horse running away he would get out and whip him ; that defendant then tied the horse and plaintiff got out and struck defendant twice ; that defendant then caught the whip and pulled it away, and upon plaintiff following him in a threatening manner, struck him twice, and plaintiff then went away.

Young & Kellogg (L. H. Northup, of counsel), for app’lt; Fred A. Pratt, for resp’t.

We have examined the various exceptions to the charge of the judge and his refusals to charge, and see no error in the same for which the judgment in this case should be reversed.'

The case was mainly submitted as a question of fact under proper instructions by the court as to the law bearing on the facts as presented by the proof on both sides.

It was a disputed question of fact whether the plaintiff was properly on the defendant’s premises by his invitation or permission, or was there as a trespasser. Under the evidence we think that that was properly submitted to the jury as a question of fact.

It was also a disputed question whether the plaintiff remained on the defendant’s premises after being ordered off, so as to make him a trespasser.

We think the instructions of the court in his charge laid down the correct rule of law, and that that question was also properly submitted to the jury.

Also the question as to which of these parties under the evidence committed the first assault was an open question of fact properly submitted by the judge to the jury; and so of every question which the judge was requested by the defendant to give positive instruction as to the fact, was by him properly submitted as a question of fact for the j ury under proper instruction as to the law.

On the whole case the charge of the judge seems entirely fair and impartial, and we discover no error of law in it for which the judgment should be reversed.

p. 149

The questions o£ fact were for the jury, and the evidence, although conflicting, was sufficient to uphold the verdict, and the "refusal of the judge to grant a new trial upon the minutes was not error for which his order can be reversed.

The judgment and order must be affirmed, with costs.

Putnam and Herrick, JJ., concur.