Art. 7. Evidence.

Henry D. Langdon and his wife, and acted in a disorderly manner, and committed a breach of the peace, and deponent as such deputy sheriff, in defense of said Henry D. Langdon and his wife, as he lawfully might do, removed said plaintiff from said house, using no unnecessary force, which is the same act charged in the complaint in this action.

Under a general issue or denial of fact charged, the defendant in mitigation of damages may give any evidence of provocation by the plaintiff, if it be so recent and immediate as to induce the presumption that the violence was committed under the immediate influence of the passion thus wrongfully excited by the plaintiff. But it would seem that provocation by a third party, at whom the blow is aimed, will not justify an assault upon the plaintiff. Corning v. Corning, 6 N. Y. 103 (citing Lee v. Woolsey, 19 Johns. 319; Matthews v. Terry, 10 Conn. 455).

Previous difficulties between the parties may be proved, as well as threats, as they aid in ascertaining who was the aggressor. Murphy v. Dart, 42 How. Pr. 31.

A long series of provocations before the assault may be proved. Stellar v. Nellis, 42 How. Pr. 163.

In an action for assault in removing plaintiff from church by the direction of a priest, evidence of the plaintiff's conduct on two other Sundays is competent on the question of justification. Crowley v. Miller, 19 Weed. Dig. 262.

Evidence of slanderous words spoken by the defendant at the time of the assault are admissible in evidence, as they show the

Art. 7. Evidence.

malicious and evil intent of the defendant toward the plaintiff at the time, and may enable the jury to fix the proper rate of damages. Delmage v. Crow, 22 Misc. Rep. 511, 49 N. Y. Supp. 1004, 83 St. Rep. 1004, reversed 23 Misc. Rep. 326.

Evidence of continued and repeated insult by the plaintiff, done for the purpose of exciting the defendant and keeping him excited, may be shown. The question is not how many hours have elapsed since the provocation was given, but whether, in view of the circumstances of the case, the party has had reasonable time to cool his blood. Each case should be controlled by its own peculiar circumstances. Dolan v. Fagan, 63 Barb. 73.

But insulting acts and declarations of the plaintiff antecedent in time, and which cannot fairly be considered as part of the transaction, cannot be given in evidence, no matter how irritating or provocative. Lee v. Woolsey, 19 Johns. 318.

To the same effect, see Ellsworth v. Thompson, 13 Wend. 658. For the same principle in an action for slander, see Richardson v. Northrup, 56 Barb. 109.

The rule upon the subject of antecedent provocative acts is well stated in Stetlar v. Nellis, 60 Barb. 524, as follows: "The evidence of acts done or words spoken by the plaintiff long before the cause of action arose is not admissible for the purpose of showing provocation or mitigation of damages. Yet where such acts and words are a portion of a series of provocations frequently repeated and continued down to the time of the assault they may be proven."

In an action for assault and battery which arose over a dispute regarding a stack of hay, part of which was claimed by plaintiff, and where the plaintiff testified that at the time he was going to remove the whole stack, while defendant testified that he was only going to take his share, it was held that the contents of a letter written by the defendant were admissible to show that he had previously threatened to take the whole. Richardson v. Van Voorhis, 3 N. Y. Supp. 599, 20 St. Rep. 667.

The defendant's belief in his own danger at the time of the assault is competent evidence in mitigation of exemplary damages. Hogan v. Ryan, 5 St. Rep. 110.

Evidence connected with the transaction which tended to show that the defendant acted maliciously may be given if the complaint set forth facts from which malice may be inferred, although

Art. 7. Evidence.

there is no express averment that the assault was made with malice. Elfers v. Wooley, 116 N. Y. 294, 20 St. Rep. 678.

SUBDIVISION 2.

Of Intention.

In Crossman v. Bradley, 53 Barb. 125, it was held that in a civil action for damages for assault with intent to commit rape the proof to sustain the action must be of the same nature and degree as if the defendant were on trial upon an indictment for an attempt to commit rape, and that the case should be tried upon the same principles. Thus, all allegations which repel the allegation of force or tend to show that no violence was used or designed is admissible, and all evidence tending to show previous lewd conduct and inviting acts of the plaintiff are admissible.

In a criminal case it has been held that words are an important element in determining the intent with which the assault was committed, and may be proved. Mulligan v. People, 5 Park. Cr. 105.

In a criminal case it was held that where the defendant had been in the employ of plaintiff, evidence that the defendant had done his work with the intention to injure his employer was proper, and that the evidence of experts as to the location, character, and probable consequence of wounds, was proper as bearing upon the intent of the defendant. People v. Kerrains, 1 T. & C. 334.

As to evidence of defendant's intention, which was held insufficient to prove his liability, see Laidlaw v. Sage, 158 N. Y. 73, reversing Laidlaw v. Sage, 2 App. Div. 374, 37 N. Y. Supp. 770.

In order that the defendant might show his belief in his danger he may be allowed to prove that other persons with the plaintiff struck him during the affray. Hogan v. Ryan, 5 St. Rep. 110.

Where threatening words of the defendant's agent are set out in the complaint the defendant may be allowed to prove that he did not authorize the use of the threatening acts, as the same may be calculated to inflame the minds of the jury and increase the verdict against him. Delmage v. Crow, 23 Misc. Rep. 326, 85 St. Rep. 240, 51 N. Y. Supp. 240, reversing 22 Misc. Rep. 511, 49 N. Y. Supp. 1004.

In a case where the plaintiff was forcibly removed from a fair ground for not paying for a seat which he held, it was held that evidence of a regulation of the society authorizing the collec

Art. 7. Evidence.

tion of a charge for such seats might be shown. But that a custom to charge for such seats is not admissible when the person removed is not shown to have had any knowledge of such custom. Magovering v. Staples, 7 Lans. 145.

Where an assault and battery grew out of a dispute as to certain property it was held that evidence as to the possession of the property was competent. Though such evidence does not justify the assault, yet a belief in ownership was of the utmost importance in authorizing vindictive damages in order that the jury might know whether the assault was committed wantonly and without cause and in the belief that the defendant was asserting a legal right. Linde v. Elias, 4 Alb. L. J. 76.

Where the defense was that the plaintiff was unlawfully trespassing upon the defendant's land, evidence of a parol agreement for an exchange of land by the plaintiff with a former adjoining owner of the premises, and that a right of way had been granted to the plaintiff, is competent as tending to show good faith on the part of the plaintiff in entering upon the land and as tending to show a legal right in the plaintiff to cross the land. Borst v. Zeh, 12 Hun, 315.

SUBDIVISION 3.

Of Character.

Evidence of the dissolute character of the plaintiff is not admissible in mitigation of damages, and such a person is entitled to the same damages as one of good character. Corning v. Corning, 6 N. Y. 104.

Where the assault arose out of a forcible removal of a passenger from a railroad train, evidence of the passenger's previous threats, tending to prove his disposition to pick a quarrel, may be proven, although the threats did not come to the knowledge of the defendant, who, in this case, was the conductor. The evidence is proper to reduce vindictive damages. Vedder v. Fellows, 20 N. Y. 126.

In a criminal case it was held that the quarrelsome disposition of the plaintiff could not be shown by proof of specific acts upon his part where it was claimed by the defendant that the assault committed was done in self-defense. People v. Frindel, 58 Hun, 482, 35 St. Rep. 805, 12 N. Y. Supp. 498.

In a civil action for indecent assault specific acts of lewdness on the part of plaintiff with men other than the defendant may

Art. 7. Evidence.

be shown in mitigation of damages, although not pleaded. It seems that such acts may be shown although they occurred after the assault, if they follow it so closely in point of time that they might be considered as indicating the state of plaintiff's "moral sensibilities" at the time of the assault. Gulerette v. McKinley, 27 Hun, 320, citing Bracy v. Kibbee, 31 Barb. 273; People v. Abbott, 19 Wend. 192; Crossman v. Bradley, 53 Barb. 125; Ford v. Jones, 62 Barb. 484; Wandell v. Edwards, 25 Hun, 489.

Where the complaint seeks to recover for assault and battery coupled with indecent assault, the plaintiff's character for chastity is directly in issue upon the question of damages, and specific acts of lewdness and immorality on part of plaintiff may be shown. Ford v. Jones, 62 Barb. 484.

In a civil action for assault and battery, coupled with indecent assault, the defendant may show improper familiarity between the plaintiff and other persons during a period prior to the assault, and at a time when from the date of the birth of her child she must have become pregnant. In this case it was also held that the defendant might prove certain acts showing the friendly manner of the plaintiff toward him after the assault. Young v. Johnson, 123 N. Y. 226, 33 St. Rep. 486, affirming 46 Hun, 164, 11 St. Rep. 590.

In a criminal action evidence of previous assault by the defendant are admissible upon the question of his motive and intent. So, also, evidence of other indictments are admissible. People v. Flannigan, 42 App. Div. 318, 59 N. Y. Supp. 101, 93 St. Rep. 101.

Compare, however, Pontius v. People, 82 N. Y. 339, affirming 21 Hun, 328.

SUBDIVISION 4.

Of Special Damage.

stated in the The court in

Items of special damage must be particularly complaint or they cannot be proved at the trial. this connection said: "Doubtless the trial court had power to allow an amendment of the complaint on proper terms by inserting an allegation of the special damage to be proven, but no amendment was ordered and none was asked for." Stevens v. Rodger, 25 Hun, 54.

Unless evidence has been given as to what the plaintiff's time