
    Daniel Smith, Resp’t, v. John Flannery, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Assault—Damages .
    In an action for assault plaintiff’s evidence tended to show- that defendant put him out of his hotel, and that he was assaulted by the barkeeper when outside; that defendant told the barkeeper to “ go out and do that man up.” This was denied by defendant, and other witnesses said that they did not hear it. The most serious injuries were received outside the house. Held, that a verdict for $570 would not be disturbed.
    Appeal from judgment in favor of plaintiff entered upon a verdict for $570.
    Action for assault. The plaintiff’s evidence tended to show that he was in defendant’s hotel drinking with a friend; that defendant put' him out, and that afterward the barkeeper came out and struck him twice and knocked him down. His friend testified that he heard the defendant tell the barkeeper to “ go out and do that man up.”
    
      Wood & Morschauser, for app’lt; Hackett & Williams ( William R. Wood, of counsel), for resp’t.
   Dykman, J.

This is an action, for assault and battery, and upon the the plaintiff introduced proof 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 of the plaintiff were received outside of the house.

Upon that sharp conflict of testimony the case 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., concurs; Barnard, P. J., not sitting.  