
    Andrew Ennis, Respondent, v. William Dudley, Appellant.
    (City Court of New York, General Term,
    December, 1897.)
    Assault and battery — Dormer conviction of the plaintiff for an assault on the defendant.
    Where a person brings an action against a police officer to recover damages for an assault and battery alleged to have been committed upon him by the officer, while taking the plaintiff from his, residence, where he had had. a disturbance with his wife, to the station-house, the officer cannot, in his own defense, prove the record of the conviction, in a Police Court, of the plaintiff for an assault made upon him while he was conveying the plaintiff to the station-house on the night in question, as the record of a conviction for a crime is not admissible in a civil action to prove- the fact upon which it was rendered.
    Appeal from a judgment in favor of plaintiff, entered on a verdict,, and from.an order denying a motion for a new trial.
    Levy & Stuart, for plaintiff.
    Francis M. Scott, counsel to the corporation, for defendant.
   Conlan, J.

This is an appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial. ■

This action was for assault and battery, alleged to have been committed by the defendant upon the plaintiff, on the 9th day of December, 1895.

The defendant was a police officer at the time of the occurrence. In the ■ course of the trial the defendant offered in evidence a Police Court record of the conviction of the plaintiff for an assault •upon the defendant, and whiles he was conveying the former to the station-house on the night in question.

The officer had been called to the residence of the plaintiff to¡ quell a disturbance between him and his wife, and its is charged by.the plaintiff that on the way to the station-house, and while in charge of the defendant, as an officer of the police, the latter violently assaulted the former, and, by his violence, caused the plaintiff’s leg to be broken.

The defendant denies the assault, and asserts in his own behalf, that the plaintiff struck him and then attempted to escape, and, in his efforts to get away, fell and thus occasioned the injury complained of.

In Sims v. Sims, 75 N. Y. 471-472, the court said upon this precise question: “Greenleaf states it as a general rule, that a record of conviction of a crime is not admissible in evidence in a civil action to prove the fact on which it was rendered, *" '* * and when offered for the purpose of establishing the fact of guilt there is a great weight of authority for the proposition that it is not admissible in a civil case.”

Even if the record had been admitted, we fail to see that it would have had the effect to justify the assault committed by the defendant. There is no disputing the fact that the plaintiff’s leg was broken in some manner, and while the plaintiff was on his way to the station-house. He was subsequently taken to the hospital where he remained for some weeks in consequence of the injuries he received.

There was, throughout the trial, a sharp conflict of evidence, and, upon the issues thus presented, the court left it for the jury to say what weight should be given to the evidence, as given by the witnesses for the plaintiff and the defendant, respectively.

It is true that the plaintiff was obliged to prove his case by a fair preponderance of evidence, but it is a general rule that the preponderance of evidence does not mean the greater .number of witnesses, and it was, and always is, the peculiar province of the jury to examine the evidence and give to it the .weight to which they think it is entitled.

We cannot say that they did not do so in the case at bar; and a verdict rendered upon disputed questions of. fact should not be disturbed unless for sufficient reason which the record may present, of undue influence, manifest prejudice or that the same is against the weight of evidence, or the preponderance of evidence.

The charge to the jury was eminently fair to the defendant. The defendant’s exception to the refusal to charge as in the fourth request is without force, and for the sufficient reason that the defendant himself testified that he did not use any fofce; in fact, that he did not strike him at all.

Nor, do we think, that the proposition contained in the. sixth request would have been fair to the plaintiff, and its refusal was certainly not to the plaintiff’s detriment; and, as it does not appear that the damages allowed are excessive, we are not inclined to disturb the verdict, and the judgment and order appealed from should be affirmed, with costs. ■

O’Dwyeb, J., concurs.

Judgment and 'order affirmed, with costs.  