
    Beanna Millis, Respondent, v. Silas W. Germond and Albert Preston, Appellants.
    
      Trial—expression of his opinion upon a question of fact by the judge, when erroneous.
    
    
      In an action brought to recover -damages for an assault and battery, the court in its charge upon the question of damages said: “ If you find the assault made as claimed by this plaintiff on the person of the plaintiff, we-proceed to the question of damages. I think it will be conceded on the part of the defense — at any rate you will not have any trouble whatever in finding the full amount claimed if you find the offense made out. You cannot give more than $1,000 because §1,000 is all they ask.”
    The jury rendered a verdict for §1,000.
    
      Held, that as the instruction to the jury was not qualified by any statement that the matter was solely within the domain of the jury, and as no further direction was given the jury when the defendants excepted to the charge, the instruction was erroneous and that the judgment must be reversed.
    Appeal by the defendants, Silas W. Germond and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess bn the 30th day of January, 1896, upon the verdict of a jury rendered after a trial at the Dutchess Circuit.
    An order' denying -a motion for a new trial is contained in the case on appeal, but the notice of appeal does not state that an appeal was taken therefrom.
    
      A. M. (& G-. Card, for the appellants.
    
      W. C. ATbro, for the respondent.
   Per Curiam:

This action is to recover damages for an assault and battery alleged to have been committed by the defendants. It is necessary to discuss but one question on this appeal. On the question of damages the following was the charge of the court, and the whole of the charge:

. If you find the assault made as claimed by this plaintiff on the person of the plaintiff, we proceed to the. question of damages. I think it will be conceded on the part of the defense — at any rate you will not have any trouble whatever in finding the full amount claimed, if you find the offense made out.
“You cannot give more than one thousand dollars, because one thousand dollars is all they ask.”

The defendants excepted to that part of 'the charge wherein the court said : “ You will not have any trouble whatever in finding the full amount claimed.”

The jury rendered a verdict for $1,000, which was the amount of. damages claimed in the complaint.

The mere expression by the judge of his opinion on the credibility of testimony, or on a question of fact involved in a case, is not error, if the jury are fairly informed that the determination of such questions is wholly "within their province. (Massoth v. D. & H. Canal Co., 64 N. Y. 524 ; Sindram v. People, 88 id. 196; Hoffman v. N. Y. C. & H. R. R. R. Co., 87 id. 25.)

At the same time it is stated in the cases cited that, in view of the regard which is paid by the jurors to the opinions of the-judge, in cases of conflicting evidence he should use great caution in expressing his opinion. In the present - case the jury was told that it would have no trouble in finding the full amount claimed, if it found the offense made out. This charge was not qualified by any instruction that the matter was solely within the domain of the jury; nor, when the defendants excepted to the charge of the court, was any further direction given the jury. The jury followed the advice of the court and returned a verdict for the full amount. We are of opinion that the language used by the court was at least susceptible of interpretation by the jury as an instruction to find the amount claimed. In the case of Massoth v. D. & H. Canal Co. (supra) the court charged : “ So, upon the question of the company’s negligence, I think you will have iio difficulty, though it is left as a question of fact for you.” Commenting on this Judge Allen writes: “It cannot be denied that the comments of the learned judge * * * were upon the very verge of the line which separates the expression of a mere opinion from an actual decision and direction.” But it was held that the qualification, “ though it is left as a question of fact for you,” saved the charge from error. Here the instruction given by the court is at least as. positive as that in the case cited, and it lacks the saving grace of the caution to the jury that it was left to them as a question of fact.

The judgment and order appealed from should he reversed and a new trial granted, costs to abide event.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.  