
    George D. Genung, Respondent, v. Hugh J. Baldwin, Appellant.
    
      Assault —provocation by the plaintiff may be shown in mitigation of damages—a newspaper article published long prior to the assault is inadmissible.
    
    In an action to recover damages for an assault and battery the defendant may show, in mitigation of exemplary damages, that the plaintiff provoked the assault, but not unless the provocation was so recent or had so recently come to the defendant’s knowledge as to induce the presumption that the violence was committed under the immediate influence of the anger thus presently incited.
    In an action by the editor of a newspaper to recover damages for an assault and battery it appeared that the plaintiff had published in his.newspaper certain articles which the defendant deemed to be derogatory to his character; that the last of such articles was printed on April 13, 1901, and that the assault was committed April 20, 1901, some hours after the last article had been called to the defendant’s attention. This article was admitted in evidence, but the other articles, which were published long prior to the assault, were excluded.
    
      Held, that they were properly excluded, especially as it appeared that, after they had been published, the plaintiff and the defendant had been reconciled.
    Appeal by the defendant, Hugh J. Baldwin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 9th day of September, 1901, upon the verdict of a jury for $450, and also from an order entered in said clerk’s office on the 5th day of September, 1901, denying the defendant’s motion for a new trial made upon the minutes-.
    ■ Frederick E. Smokes, for the appellant.
    
      Frank A. Bell, for the respondent.
   Fursman, J.

On the evening of April 20, 1901, the defendant entered the office of the plaintiff, who was an editor of a newspaper published at Waverly, F. Y., and assaulted him. There was no immediate provocation for such assault. The plaintiff had published certain articles in his newspaper which the defendant deemed derogatory to his character. The last of these had been brought to the attention of the defendant some hours before the assault. Thé verdict of the jury, fully justified by the evidence, establishes that the assault was without justification, and the only questions to be considered are whether the learned trial justice was correct in excluding certain evidence claimed by the defendant to be competent in mitigation of damages, and in deciding that, on the evidence, the plaintiff was entitled to a verdict and leaving to the jury only the question of damages. The last article published was- admitted in evidence. (Exhibit “ B.” This is mentioned at page 87 as Exhibit 8, but is evidently Exhibit B as stated in the answer. This is apparent from the date of the paper in which the article appears, viz., April 13, 1901.) The other articles offered and excluded were published long anterior to the assault. The anger, if any, aroused thereby in the mind of the defendant had had ample time to cool, and had in fact cooled, for it appears that the defendant long after their publication had sought out the plaintiff and they had become reconciled. That these articles were properly excluded there can be no doubt. The rule is that a defendant may show in mitigation of exemplary damages that the plaintiff provoked the assault (Voltz v. Blackmar, 64 N. Y. 440), but not unless the provocation was so recent (Stetlar v. Nellis, 60 Barb. 524) or had so recently come to defendant’s knowledge as to induce the presumption that the violence was committed under the immediate influence of the anger thus presently excited. (Corning v. Corning, 6 N. Y. 97.)

The ruling that plaintiff was entitled to a verdict for some amount was,correct. The evidence of the assault and that it was unjustifiable was without dispute. The defendant in his own evidence established a cause of action against himself. The only question, therefore, for the jury was the amount of damages. The rule is well stated in Bulger v. Rosa (119 N. Y. 464): “ The test of the right to direct a verdict is whether the court would be bound to set a verdict aside as against evidence if rendered against the party in whose favor it was directed. If .this would be the duty of the court the judge need not await the verdict before acting, but in advance may rule the question as one of law.” (See, also, Dwight v. Germania Life Ins. Co., 103 N. Y. 359.) In the present case there is no conflict of evidence that the assault was committed and that it was without justification. The decision of the learned trial justice, in this respect was, therefore, correct.

Judgment and order unanimously affirmed, with costs.  