Bensky v. Banks — 5 Silv. Sup. 229

Majority

p. 229

Nathan Bensky, Respondent, v. Charles Banks, Appellant.

Supreme Court, Second Department, General Term,

February 10, 1890.

Headnote

Appeal. Verdict.—In the absence of error in the rulings and charge, a verdict in favor of plaintiff, where a case is made out on the facts as stated by him, and submitted under proper instructions, will not be disturbed on appeal.

Appeal from judgment in favor of plaintiff for $422.53 entered on verdict, and from order denying motion for a new trial.

Action for assault and battery.

Bartow S. Weeks, for appellant.

E. A. Carpenter, for respondent.

This is an action for the recovery of damages for assault and battery. The plaintiff recovered a small verdict, and defendant has appealed.

According to the testimony of the plaintiff he was a peddler and was approaching the house of the defendant to make sales, when the defendant came up to him and struck him with a stick and knocked him down, and inflicted injuries upon his ear and head.

The defendant does not deny the infliction of the blow, but says the plaintiff made a motion to draw a pistol, and he acted in self-defense.

The whole case went to the jury under a correct charge and the plaintiff received the verdict, and so we must assume the facts as he stated them and as the jury has found them.

Under such an assumption the case was made out and the

p. 230

judgment and order denying the motion for a new trial must be affirmed.

There was no error either in the ruling or charge of the court.

Judgment and order denying new trial affirmed, with costs.

Pratt, J., concurs.