
    SUPREME COURT — APPELLATE TERM,
    JANUARY, 1897.
    Michele Radice, Respondent, v. Associazione Fraterna Italiana, Appellant.
    Motion by defendant-appellant to open default.
    Joseph Gif uni, for motion.
    William E. Cook, opposed.
   Per Curiam.

The defendant conceded at the trial that if the sickness for which damages were claimed was not induced by a quarrel provoked by the plaintiff, then the amount sued for, $29.50, was correct.

The plaintiff testified that the sickness was caused by the foreman of the shop in which he worked pulling a knife out of the plaintiff’s hand and cutting the plaintiff’s thumb; and that he caused the arrest of the foreman therefor. The latter was after-. wards tried at the Special Sessions, and acquitted; and the question" whether the plaintiff or the foreman provoked the assault was one of fact, on which the justice found for the plaintiff.

This finding, which is sufficiently sustained by the evidence,brought the plaintiff within the concession made by the defendant, and- entitled him to the amount sued for.

The motion will, therefore, be denied, but without costs.' .

Present: Dalt, P. J., McAdam andxBischobf, JJ.

Motion denied, without costs.  