
    CARPENTER v. MILES.
    (Supreme Court, General Term, Fourth Department.
    December 26, 1895.)
    Review on Appeal—Discretion op Trial Court.
    A motion for new trial on the ground of excessive damages is addressed to the discretion of the trial court, and its decision thereon will not be disturbed on appeal.
    Appeal from Jefferson county court.
    Action by Sabina Carpenter against Andrew B. Miles for assault and battery. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for new trial on the minutes, defendant appeals.
    Affirmed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    John Conboy, for appellant.
    I. R. Breen, for respondent.
   HARDIN, P. J.

We have looked carefully through the evidence given at the trial, and are of the opinion that it sustains the verdict. It was for the jury to resolve the sharp and stubborn conflict furnished by the different witnesses. The charge of the learned county judge fairly presented the questions of fact to the jury, and he instructed the jury that, if they found malice on the part of the defendant, they might give punitive damages. We are not willing to disturb the verdict by reason of the amount thereof, to wit, $500. Besides, the motion for a new trial, as to the extent of the damages, was addressed to the discretion of the county court. We ought not to disturb the conclusion reached by that court in the exercise of its discretion. Code, § 1340, as amended in 1895 (1 Laws 1895, p. 840); Thomas v. Keeler, 52 Hun, 318, 5 N. Y. Supp. 359; Tucker v. Pfau, 70 Hun, 59, 23 N. Y. Supp. 953; Kincaid v. Richardson, 25 Hun, 237, 239; Wright v. Chase, 77 Hun, 90, 28 N. Y. Supp. 310; Reilley v. President, etc., Delaware & H. Canal Co., 102 N. Y. 383, 7 N. E. 427; Clark v. Eldred, 54 Hun, 5, 7 N. Y. Supp. 95. No exceptions were taken during the trial which justify us iy interfering with the verdict of the jury.

Judgment and order affirmed, with costs.

MARTIN, J., concurs. MERWIN, J., concurs in the result.  