Conway v. Carpenter

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff after a trial at the Circuit, and from an order denying a motion for a new trial. The action has been tried three times with various results. On the first trial the complaint was dismissed, and upon the plaintiff’s appeal judgment was reversed, and a new trial was granted. The second trial of the action was had in March, 1894, when the plaintiff obtained a verdict for $2,500. Upon the defendant’s appeal to the General Term that judgment was reversed, and a new trial granted. The third trial or the action was had at the Westchester Circuit in September, 1894. A verdict was rendered in favor of the plaintiff, and judgment was thereupon entered, from which this appeal is taken. The plaintiff was a minister of the gospel, and while engaged in the performance of services in a church at Yonkers in March, 1882, it is alleged in the complaint that he v as violently seized and taken from the pulpit with force and violence, and was thrown upon his back and dragged from the vestibule of the church into one of the public streets of Yonkers, by order and direction of the defendant. Upon tho last trial, which resulted in a verdict for the plaintiff, the only question submitted to the jury was whether more force or violence was used against him than was necessary under the circumstancas, the jury being charged that the defendant had the right to cause the removal of the plaintiff from the church in which he was engaged in holding services at the time. The charge of the trial judge to the jury was within the ruleof law laid down by the General Term when the case was before it on the last occasion, and we are, therefore, concluded by the law as so laid down. The question of excessive force was plainly one for the jury. Whereas in this case there was testimony from which the jury mjght find that the force used was excessive, the question being thus properly submitted to the jury, and the verdict being in favor of the plaintiff, the rules of law applicable to the case having been heretofore settled, we find no cause for interference with the verdict, and the judgment should be affirmed, with costs.

Pratt, J., concurred; Dykman, not voting.