
    Marcia Estardus, Respondent, v. Harry K. Thaw, Appellant.
   Judgment reversed and a new trial ordered, with costs to the appellant to abide the event, upon the ground that the verdict was against the weight of the credible evidence, and upon the further ground that it was the result of passion and prejudice. Merrell, Martin, O’Malley and Sherman, J.J., concur; Finch, J., dissents.

Finch, J. (dissenting).

I dissent and vote for affirmance upon the ground that only a question of fact is involved, and it cannot be said that the verdict is against the weight of the evidence, considering all the evidence and the added fact that the defendant did not take the stand to deny the assault. The letter which the plaintiff wrote subsequent to the assault but confirms the fact of an assault and in no event can be construed as a release running to the defendant. Nor can it be said that the verdict was the result of passion or prejudice in view of the fact that the defendant does not contradict plaintiff’s evidence of the assault. Any clean-minded jury would naturally be affected by the vagaries of defendant and would properly give weight to the damages suffered because of the indignities to the person in addition to the actual physical derangement directly arising from the repeated blows. That a jury may have estimated the damages at too high a figure does not lead to a setting aside of the verdict but to a reduction. With this reduced sum only we are dealing upon this appeal. In addition, there were no exceptions and no motion to strike out testimony or for a new trial.  