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Schneider v. Schultz

6 N.Y. Super. Ct. 664 4 Sandf. 664 Court N.Y. Super. Ct. Decision date 1851-10-25 English

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p. 664
Schneider v. Schultz.

Headnote

In an answer to a complaint for an assault and battery, the defendant will not be permitted, first to deny the charge, and then to set up son assault demesne.
October 25, 1851.
J. M. Smith, Jr., for the plaintiff.
O. H. Smith, for the defendant.

The complaint was for an assault and battery. Tbe answer denied tbe assault, &c., and then set forth that if there were any injury to the plaintiff it was occasioned by an assault which he previously made on the defendant. A motion was made to strike out the latter clause of the answer, which was granted by Mason, J., at chambers, with the concurrence of ail the justices. The judge said that where the assault was put in issue, the party could not plead a justification. If there were mitigating facts, he may give them in evidence on the trial.