Patterson v. McIlroy — 60 N.Y. Super. Ct. 130

Majority

p. 130

THOMAS G. PATTERSON, Appellant v. WILLIAM McILROY, Respondent.

Headnote

Assault—Request to charge, when too broad in view of surrounding circumstances.

In an action to recover damages for assault it was shown on the trial that defendant called on plaintiff at his office for the purpose of adjusting an . account owed hyplaintiff to defendant’s firm. A dispute arose between them and plaintiff ordered defendant out of his office. Defendant started to leave, when, as he testified, plaintiff followed and struck or pushed him. Defendant then returned and committed the acts claimed to amount to an assault. The jury' rendered a verdict for defendant. Plaintiff’s motion for a new trial was denied. He appealed from the judgment entered, but omitted in his notice of appeal to specify the order denying the motion for a new trial. Held, that no questions of fact on the trial were open for review.

The trial judge charged : “ If the plaintiff put his hands upon the defendant the defendant had a right to resist, and to use such force as would prevent the plaintiff from inflicting injury upon him.” Held, no error.

Upon plaintiff’s request the judge refused to charge, “as matter of law, that the premises being the premises of the plaintiff, when he ordered the defendant to leave, it was his duty to do so, and that upon his failure to do so the plaintiff had a right to use the necessary force to eject him, and that in using such necessary force, if he did not use any unnecessary violence, it would give the defendant no right to assault him.” The judge also refused to charge at plaintiff’s request, “ as matter of law, that after

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the defendant was ordered by the plaintiff to leave the premises and had left through the private door he had no right to return.” E.eld, no error, that in view of the testimony given hy defendant the requests were too broad.

Before Freedman, P. J., and McAdam, J.

Decided January 11, 1892.

Appeal from judgment entered in favor of defendant upon the verdict of a jury. The facts are sufficiently stated in the head note.

Palmer & Boothby, for appellant.

Howe & Hummel, for respondent.

The appeal being the judgment only, the questions of fact are not open for review. The action was brought to recover damages for an assault alleged to have been committed by the defendant upon the plaintiff. The issues were submitted to a jury and determined by them in favor of the defendant. The errors complained of relate to the charge of the trial judge and his refusals to charge otherwise. Upon an examination of the evidence bearing upon this branch of the case, none of the exceptions appears to be tenable. In view of the testimony given by the defendant, plaintiff’s requests for unqualified instructions to the effect that, as matter of law, the defendant had no right to return to plaintiff’s private office after he had been ordered to leave it, and had started to do so, and that the plaintiff had a right to use the necessary force to eject the defendant, were too broad.

The judgment should be affirmed, with costs.

McAdam, J., concurred.