Art. 7. Evidence.

is worth the jury cannot allow for loss of time consequent upon an assault. Kane v. Manhattan Ry. Co., 3 St. Rep. 145.

SUBDIVISION 5.

Miscellaneous Weight of Evidence.

One sued civilly for assault and battery cannot in his own defense prove the record of a conviction, in the police court, of the plaintiff for assault and battery made upon him, because the record of conviction in a criminal case is not admissible in a civil action to prove the fact upon which it was rendered. Ennis v. Dudley, 22 Misc. Rep. 4, 48 N. Y. Supp. 622, 84 St. Rep. 622. It seems that the fact that the defendant has been punished criminally for the same assault and battery cannot be given in evidence to mitigate damages in a civil suit. Cook v. Ellis, 6 Hill, 466.

As to expert testimony in respect to an injury received in assault and battery, see Fort v. Brown, 49 Barb. 366.

As to dying declarations of a person killed in an assault, and as to other evidence sought to be offered as part of the res gestæ, see Spatz v. Lyons, 55 Barb. 476.

Where an assault is committed in the absence of witnesses, illwill on the part of the defendant toward the plaintiff is admissible as circumstantial evidence to determine by whom the assault was committed. Jewett v. Baning, 21 N. Y. 27, affirming 23 Barb. 13.

In a criminal case for assault and battery the prosecution is bound to prove beyond any reasonable doubt the charge made. But in civil case, under the same set of facts, a preponderance of proof is sufficient. Dean v. Raplee, 145 N. Y. 319, citing People v. Briggs, 114 N. Y. 56.

Where a person in whose favor a legal process is issued directs the acts of an officer to be done under it, he is responsible therefor, and cannot prove that the assault of the officer was not the consequence of the request. "No man is allowed to excite another to trespass, and after its commission to give his want of influence in evidence in bar of the action." Coats v. Darby, 2 N. Y. 517, overruling Herrick v. Manly, 1 Cai. 253.

Where an assault was committed by the defendant when asked by the plaintiff to leave the house of plaintiff, it was held that the defendant might show in justification and mitigation of damages

Art. 8. Procedure and Trial.

that the plaintiff had no right to remove him. Collier v. Moulton, 7 Johns. 109.

Where the defendant was sued for assault and battery for attempting to kiss plaintiff, and he proved, in order to show license, that by a vote passed on an excursion train he was to go through the train and kiss every lady in the car, it was held that the exclusion of evidence by the plaintiff that she and her friends were a distinct party from those with the defendant, was improper. Van Voorhis v. Hawes, 12 How. Pr. 406.

A physician who has attended a person after an assault may testify as expert concerning the effect of the assault. Anthony v. Smith, 4 Bosw. 503.

In an action by a married woman for assault with attempt to rape it is error to ask the defendant on cross-examination whether he was living with his wife at the time of the offense. Such matter does not affect his credibility. Haulish v. Boller, 72 App. Div. 559.

ARTICLE VIII.

PROCEDURE AND TRIAL.

SUBDIVISION 1. Arrest and attachment

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PAGE.

462

463

463

465

SUBDIVISION 1.

Arrest and Attachment.

The right to arrest the defendant in an action for assault and battery is given by Code, § 549, subd. 2.

So, too, the right to attach property.

$635, subd. 3.

See Code Civ. Proc.,

As to right of execution against person, see Code Civ. Proc., §§ 1487-1490. See "Remedies," chap. VI.

By section 3177 of the Code, in such an action for assault and battery upon the high seas, the plaintiff may apply for an order of arrest to accompany the summons, in the form and to the effect specified in the following section. The following sections of the Code, up to and including section 3187, give the proceedings on such arrest, bail, and other matters connected with the arrest. But section 3187 provides that the article does not prevent the

Art. 8. Procedure and Trial.

plaintiff from commencing and conducting in the ordinary manner an action for a cause specified in subdivision 2 of section 317.

SUBDIVISION 2.

Trial.

If the assault is one with intent to commit rape, the court may, in its discretion, exclude all persons not directly interested from the court-room. Code Civ. Proc., § 5.

Although the action of assault and battery is transitory, and may be tried in a county other than where the assault occurred, yet, other things being equal, the court may regard the place of the assault as an important, if not a controlling, factor, in determining where the trial should be had. Thompson v. Norwood, 46 St. Rep. 204, 19 N. Y. Supp. 632.

In Willis v. Metropolitan Ry. Co., 76 App. Div. 340, 78 N. Y. Supp. 478, 112 St. Rep. 478, the plaintiff, who had been assaulted by the defendant's conductor, drew his complaint in the form of an action for negligence, alleging that the conductor was incompetent, unfit, and unsuitable, to the knowledge of the defendant, etc., and that the defendant was negligent in employing him, etc. Under this complaint the court struck out all testimony tending to show assault, and dismissed the complaint on the ground that the cause set forth was for negligence, while the true cause of action was assault. Held, that, when once the relation of carrier and passenger is entered upon, the carrier is responsible for all the consequences resulting to the passenger from the willful misconduct or negligence of the persons employed, etc.; hence that, whether the action was for negligence or for assault, the liability of the defendant was the same in both cases, and that the plaintiff was entitled to have his case submitted to the jury. Furthermore, that, as there was an implied contract on the part of the defendant to carry the plaintiff safely, the assault by the conductor was in law a negligent act on the part of the defendant.

SUBDIVISION 3.

Charge and Nonsuit, Etc.

In a civil action, the defendant is entitled to a charge that "he is presumed innocent," as such presumption exists in civil actions, where a judgment against the defendant would show him to have

Art. 8. Procedure and Trial.

been guilty of a crime. N. Y. Supp. 238.

Grant v. Riley, 15 App. Div. 190, 44

It is not error to charge that, if the plaintiff put his hands upon the defendant, the latter had a right to resist, and to use such force as would prevent the plaintiff from inflicting injury upon him. Patterson v. McIlroy, 28 J. & S. 130, 42 St. Rep. 960.

It is error to refuse to charge that the defendant has a right to insist that the plaintiff should vacate his store, and that the defendant need not be held liable if the plaintiff refused to go upon request, and the defendant only used so much force as was necessary to put him out. Johnson v. Maxwell, 19 Misc. Rep. 706, 43 N. Y. Supp. 1156.

It is error for the court to leave to the jury the question as to the reasonableness of a regulation of a street railroad company prohibiting passengers from taking packages or cumbersome goods into a car. The court should charge the jury, as a matter of law, that such a regulation is reasonable. It was also held that the judge should charge that a conductor was entitled to eject the plaintiff who entered a car carrying a valise and two rifles with bayonets attached. Dowd v. Albany Ry. Co., 47 App. Div. 202, 62 N. Y. Supp. 179, 96 St. Rep. 179.

Where the defense in assault and battery was that the defendant was defending his master's wagon placed upon a private road, and where there is a conflict in the testimony as to whether the road was public or private, it is error for the court to charge that there was no defense in any view of the case, and that the only question was the amount of damages. Howe v. Oldham, 52 St. Rep. 734, 23 N. Y. Supp. 100.

For a case where the charge of the court in assault and battery was upheld, see Kosters v. Brooklyn, etc., R. R. Co., 10 Misc. Rep. 18, 62 St. Rep. 644, 30 N. Y. Supp. 531.

For a charge which was held to be defective in respect to the rights of a deputy sheriff to remove plaintiff in the execution of a warrant of dispossession, see McLaughry v. Porter, 86 Hun, 316, 67 St. Rep. 190, 33 N. Y. Supp. 464.

For a case where the charge respecting the power of a jury to give damages was held to be erroneous, see Millis v. Germond, 3 App. Div. 383, 38 N. Y. Supp. 934.

It is proper to charge that if the jury find the assault malicious they may award punitive damages. It is error to refuse to charge

Art. 8. Procedure and Trial.

that all the circumstances of the transactions are to be considered in determining whether there was malice or not on the part of the persons making the arrest. Frost v. Pinkerton, 61 App. Div. 566, 70 N. Y. Supp. 892, 104 St. Rep. 892.

It is error to refuse to charge that the jury may consider evidence of provocation in mitigation of compensatory damages as well as punitive damages. Genung v. Baldwin, 77 App. Div. 584, 79 N. Y. Supp. 569, 113 St. Rep. 569, reversing, on reargument, 75 App. Div. 195.

In Hyatt v. Wood, 3 Johns. 239, a new trial was refused, although the judge has misdirected the jury. This was upon the ground that the injury was trivial, and in a case where the verdict was for the defendant no ends of justice would be subserved by granting a new trial merely to give the plaintiff an opportunity to recover nominal damages.

In Davison v. Herring, 24 App. Div. 402, 48 N. Y. Supp. 760, 82 St. Rep. 760, an action brought for indecent assault, the verdict was set aside on account of statements made by the judge in the presence of the jury, to the effect that if the grand jury were in session he would send the case to them, and that the district attorney of the county had better present the case to the next grand jury. This was done, even though the court subsequently charged the jury to disregard his statements.

Though a verdict will not ordinarily be disturbed, yet it will not be allowed to stand where the jury ignored the weight of evidence. Higgins v. Quinn, 25 Misc. Rep. 292, 54 N. Y. Supp. 586. See this case also for facts where a verdict was considered to be against weight of evidence.

For a case of assault and battery where evidence was held to warrant a verdict, see Caldwell v. Central Park, etc., R. R. Co., 7 Misc. Rep. 67, 57 St. Rep. 489, 27 N. Y. Supp. 397. See also Townsend v. Stuart, 53 St. Rep. 147, 23 N. Y. Supp. 638; also Bensky v. Banks, 30 St. Rep. 362, 8 N. Y. Supp. 935.

SUBDIVISION 4.

Costs.

In actions for assault and battery, if the plaintiff recovers less than $50 damages, the amount of his costs cannot exceed the amount of damages. Code Civ. Proc., § 3228, subd. 3.

Though a wife cannot maintain a civil action against her hus