
    Second Department,
    April, 1965
    (April 5, 1965)
    Vincent Baynes, Respondent, v. City of New York et al., Appellants.
   In tan action to recover damages for personal injury sustained as the result of an allegedly wanton assault .upon plaintiff by defendant Smith, a police officer employed by the 'defendant City of New York, both defendants appeal from so much of a judgment of the Supreme Court, Kings County, entered March 23, 1964 .after trial, as directed recovery by plaintiff against them of the sum of $75,215.25 based upon the jury’s verdict of $70,000 for compensatory damages and $5,000 for punitive damages. Judgment modified on the law and the facts by reducing to $70,215.25 the recovery against the defendant City of New York; and as so modified, judgment, insofar as appealed from, affirmed, without costs. Concededly, the defendant Smith struck plaintiff over the head with his night stick, inflicting serious injuries which included a fracture of the skull and .the loss of sight of an eye. Plaintiff claimed that, without any provocation, the blow was struck in the back room of the police station after Smith had arrested him for disorderly conduct; defendants claimed that Smith hit plaintiff while in the street, on the way to the police station, after Smith was attacked .by plaintiff. The record, thus presented an issue of fact which was primarily for the jury to determine; and, in .our opinion, the finding in .plaintiff’s favor was mot against the weight of the evidence. We are also of the opinion that the award of $70,000 as compensatory damages was not excessive for the injuries sustained. However, we find no proof in the record to justify any assessment for punitive damages against defendant City of New York (of. Graven v. Bloomingdale, 171 N. Y. 439; Cope v. Wmamaker, 249 App. Div. 747, nffd. 274 N. Y. 622; Snyder v. State of New York, 20 A D 2d 827). Ughetta, Acting P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.  