
    Daniel Smith, Respondent, v. John Flannery, Appellant.
   Dykman, Jr

This is an action for assault and battery, and upon the trial the plaintiff introduced proof of two assaults and injuries, one committed by the defendant himself, and one committed by Glynn by direction of the defendant. There was much contradiction in the testimony. One witness, however, who was with the plaintiff testified positively that he heard the defendant say after the plaintiff was outside of the defendant's house, “Glynn, go out and do that man up.” That was denied by the defendant, and other witnesses who were present said they did not hear it said. That was a very material question upon the trial, because the serious injuries or the plaintiff were received outside of the house. Upon that sharp conflict of testimony the ease went to the jury and the verdict was found for the plaintiff for $570. The injuries of the plaintiff were very severe, and the verdict indicates the belief of the jury of the testimony introduced in his behalf. That being so, the evidence established an aggravated case, and this court cannot interfere. The judgment should be affirmed, with costs. Pratt, J., concurred; Barnard, P. J., not sitting. Judgment and order denying new trial affirmed, with costs.  