
    Bensky, Respondent, v. Banks, Appellant.
    
      (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    Appeal from circuit court, Suffolk county.
    Action by Nathan Bensky against Charles Banks, for assault.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      J. Adriance Bush, (Barton S. Weeks, of counsel,) for appellant. Everett A. Carpenter, for respondent.
   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 a peddler, 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 inflicted injuries 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.  