
    TOWNSEND v. STEWART.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    Review on Appeal—Conflicting Evidence.
    Where the evidence is conflicting the verdict will not be disturbed on appeal.
    Appeal from circuit court, Washington county.
    Action by William H. Townsend against Albert Stewart to recover for an assault and battery. From a judgment for plaintiff, and an order denying a motion for a néw trial, made on the minutes of the judge, defendant appeals.
    Affirmed.
    , Argued before MAYHAM, P. J., and PUTNAM and HEEEIOK, JJ.
    Young & Kellogg, (L. H. Northup, of counsel,) for appellant.
    Fred A. Bratt, for respondent.
   MAYHAM, P. J.

We have examined the various exceptions to the charge of the judge, and his refusals to charge, and see no error in the same for which the judgment in this case should be reversed. The case was mainly submitted on questions of fact, under proper instructions by the court as to the law bearing on the facts as presented by the proof on both sides. It was a disputed question of fact whether the plaintiff was properly on the defendant’s premises, by his invitation or permission, or was there as a trespasser. Under the evidence we think that that was properly submitted to the jury as a question of fact. It was also a disputed question whether the plaintiff remained on the defendant’s premises after being ordered off, so as to make him a trespasser. We think the instructions of the court, in his charge, laid down the correct rule of law, and that that question was also properly submitted to the jury. Also, the question as to which of these parties, under the evidence, committed the first assault, was an open question of fact, properly submitted by the judge to the jury; and so of every question on which the judge was requested by the defendant to-give positive instruction as to the fact, was by him properly submitted as questions of fact for the jury, under proper instruction as to the law. On the whole case the charge of the-judge seems entirely fair and impartial, and we discover no error of law in it, for which the judgment should be reversed. The questions of fact were for the jury, and the evidence, although conflicting, was sufficient to uphold the verdict, and the refusal of' the judge to grant a new trial upon the minutes was not error for-which his order can be reversed. The judgment and order must be-affirmed, with costs. All concur.  