
    Mary Fox, Respondent, v. Isadore M. Brown, Appellant.
    Third Department,
    November 10, 1915.
    Appeal — charge —failure to object —assault — punitive damages.
    Where the defendant in an action for assault has not objected to the submission of the question of the measure of damages to the jury, he may not on appeal contend that there is no ground for punitive damages.
    Howard, J., dissented.
    Appeal by the defendant, Isadore M. Brown, from a judgment of the County Court of Schenectady county, entered in the office of the clerk of said county on the 21th day of March, 1915, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 1st day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      R. J. Cooper and Frank Cooper, for the appellant.
    
      Eugene Gibney, for the respondent.
   Woodward, J.:

The complaint alleges that the defendant conducted a jewelry store and pawnshop; that plaintiff entered the premises for the purpose of negotiating a loan, and that while thus lawfully upon the defendant’s premises, at his invitation, she was grossly assaulted, resulting in a severe nervous shock. There was a clear and decided conflict of evidence; the learned trial court stated frankly to the jury that they were to determine which of these two persons told the truth, and that one of them was deliberately falsifying the facts. lío exception was taken to the charge, which fairly stated the issues to be determined by the jury, but upon this appeal we are urged to consider various statements of the trial judge as evidencing error. We are unable to discover anything in the charge which shows any unfairness to the defendant. While there is no doubt of the power of this court to interfere where the charge is wrong-in its essential elements, we are fully persuaded that the case now before us does not call for action.

We are of opinion that the defendant, having consented by not objecting to the submission of the question of the measure of damages to the jury, is not now in a position to contend that there is not ground for punitive damages. If this plaintiff was assaulted, as she says she was and as the jury has believed she was, then there was a case for punitive damages. The court did not err in this regard, even though the question were actually here for determination.

We are equally persuaded that the court did not err in reference to the hypothetical question asked of Dr. Foley, though it does not seem to be necessary to enter into a discussion of the same.

We have followed the defendant’s suggestions through, but do not find any reason for disturbing the judgment.

The judgment and order appealed from should be affirmed, with costs.

All concurred, except Howard, J., dissenting.

Judgment and order affirmed, with costs.  