
    (10 Misc. Rep. 18.)
    KOSTERS v. BROOKLYN, B. & W. E. RY. CO.
    (City Court of Brooklyn, General Term.
    October 22, 1894.)
    Assault and Battery—Instructions—Provocation.
    In an action for an assault by a street-car conductor on a passenger the court properly refused to charge that, if plaintiff commenced the altercation, and used indecent and insulting language, such as was calculated to produce an assault, the verdict must be for defendant, where the conductor testified that plaintiff used abusive language, after which he drew an iron wrench from his pocket, and struck at him, and that he (the conductor) then struck plaintiff.
    Appeal from trial term.
    Action by K. Rosters against the Brooklyn, Bath & West End Railway Company to recover damages for an alleged assault and battery. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.
    Argued before VAN WYCK and OSBORNE, JJ.
    Morris & Whitehouse, for appellant.
    ' Geo. W. Miller, for respondent.
   VAN WYCK, J.

The plaintiff sued to recover damages for an alleged assault committed upon him while a passenger on defendant’s car by the conductor. The only question for our consideration is whether the court erred in refusing to charge at defendant’s request that “if the plaintiff commenced the altercation, and in the course of it addressed indecent and insulting language to the conductor, and language such as was calculated or likely to produce an assault, the verdict must be for defendant.” Assuming that this is a sound statement of law under the authority of the prevailing opinion in Scott v. Railroad Co., 53 Hun, 414, 6 N. Y. Supp. 382, it seems to us that the court charged so much thereof as was applicable to the facts in this case. The plaintiff testified that the conductor, after he had paid his fare, demanded of him, at several different times, the payment of the same, and without provocation, save his refusal to pay his fare a second time, that the conductor clubbed him severely. The conductor testified that" at different times he demanded the fare, which was not paid, and that plaintiff, while standing on the platform, used abusive language to him, after which he stepped from that platform to the platform of the adjoining car, when the plaintiff drew an iron wrench out of his pocket, and struck at him; that he then took his eight-inch stick out of his pocket, and struck the plaintiff. It is manifest from this testimony, if the conductor is to be believed, that this assault on plaintiff was not provoked by any insulting words, but by the threatened assault upon Mm by plaintiff with the wrench. The court charged that if plaintiff assaulted or threatened to assault the conductor, the latter was justified in assaulting plaintiff. This testimony of the conductor is the only evidence that, before he assaulted the plaintiff, the lattter used insulting language, or threatened to assault the conductor. After examining the testimony, we see no reason to disturb the verdict. Judgment and order affirmed, with costs.  