
    Martin Scalise, by Angie D’Ambrosio, His Guardian ad Litem, Respondent, v. City of New York, Appellant.
   In an action to recover damages for personal injuries sustained as the result of the alleged negligence of a conductor of a subway train in failing to prevent an assault, the appeal is from a judgment entered on a jury verdict in favor of respondent. Judgment reversed on the law and the facts, without costs, and complaint dismissed. There is no proof to show that the conductor was negligent in failing to anticipate the single blow which was administered. There had been complaints with respect to the intoxicated condition of the incompetent and the conductor had advised him to remain seated and quiet. But there was no proof to show that an assault by a third person upon the incompetent was imminent or even threatened. All that was shown was that the incompetent and the third person had been observed close together and talking loudly and gesturing. There had been no violence or threat of violence shown as of the time the conductor repaired to his station between the ears to operate the doors. If the complaint were not being dismissed, a new trial would be granted on the ground that the verdict is against the weight of the credible evidence. Beldoek, Acting P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.  