
    Nathan Bensky, Resp’t, v. Charles Banks, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.
    
    Assault.
    Plaintiff testified that when approaching defendant’s house to make sales, the defendant struck him with a club and knocked him down, inflicting injuries on his ear and head. Defendant testified that plaintiff made a motion to draw a pistol and he acted in self defense. Held, that assuming the facts as plaintiff stated them to have been found by the jury the case was made out and a verdict in his favor was proper.
    
      Appeal from judgment in favor of plaintiff for $422.53, entered on verdict, and from order denying motion for a new trial.
    Action for assault and battery.
    
      Bartow S. Weeks, for app’lt; B. A. Carpenter, for resp’t.
   Dykman, J.

This is an action for the recovery of damages for assault and battery. The plaintiff recovered a small verdict, and defendant has appealed.

According to the testimony of the plaintiff he was apedler and was approaching the house of the defendant to make sales, when the defendant came up to him and struck him with a stick and knocked him down, and inflictedinjuries upon his ear and head.

The defendant does not deny the infliction of the blow, but says the plaintiff made a motion to draw a pistol, and he acted in self defense.

The whole case went to the jury under a correct charge and the plaintiff received the verdict, and so we must assume the facts as he stated them and as the jury has found them.

Under such an assumption the case was made out and the judgment and order denying the motion for a new trial must be affirmed.

There was no error either in the ruling or charge of the court.

Judgment and order denying new trial affirmed, with costs.

Pratt, J., concurs.  