
    Thomas Walker, Plaintiff and Respondent, v. Jacob Wilson, Defendant and Appellant.
    1. In an action for forcible and malicious injuries, the Jury may give punitive damages.
    2. In an action for trespass, in wrongfully entering the plaintiff’s office, and there making a disturbance and a violent assault upon the plaintiff’s clerk, it appeared that the defendant went there for the purpose of demanding payment of a small debt, with the malicious intent of provoking a quarrel with the clerk in case he was not paid; and that he assaulted and wounded the clerk in pursuance of this intention: Held, that a verdict of $400 damages was not excessive.
    3. In an action for a wrongful trespass by a stranger, on the premises held by the plaintiff as a lessee, the plaintiff need not produce the lease. Evidence of possession on his part under a claim of right by written instrument is enough against a wrong-doer.
    (Before Woodruff, Moncrief and Robertson, J. J.)
    Heard, October 15;
    decided, -November 30, 1861.
    Appeal from a judgment on a verdict, and also from an order at Special Term denying a motion for a new trial.
    This action was by Thomas Walker against Jacob Wilson.
    The complaint alleged that the defendant, on March 31, 1859, “with force and arms, unlawfully entered and broke into the office and premises of the plaintiff, # * * and then and there made a great noise and disturbance therein, and continued therein making such noise and disturbance for fifteen minutes or thereabouts, and then and there forcibly and violently assaulted, beat and wounded one Gavin Brown, a clerk for the plaintiff ';” and ■ that defendant soiled, &c., plaintiff’s premises.
    The answer of the defendant denied that he, with force or arms, or unlawfully, entered or broke into the office or premises of the plaintiff, or there unlawfully made a noise or disturbance, or continued unlawfully therein, or that said defendant unlawfully soiled any property of plaintiff.
    
      The action came on to be tried before Chief Justice Bosworth and a Jury, on the 23d day of October, I860".
    The facts as to the assault and the motion to dismiss the complaint, are sufficiently stated in the opinion of Robertsor, J.
    The Jury rendered a verdict for the plaintiff for $400 damages.
    The defendant moved, at Special Term in May, 1861, before Mr. Justice Robertsor, for a new trial, upon a case made, on the ground that the damages were excessive, and also upon exceptions contained in the case, which motion was denied, the following opinion being rendered :
    Robertsor, J. The motion for a new trial in this case is founded upon a supposed excessiveness of damages, and an exception to a refusal to dismiss the complaint.
    The action was for trespass. The evidence showed that the defendant entered upon certain premises occupied by the plaintiff, demanded from a clerk in his employ the payment of a debt; and after his refusal, struck such clerk a violent blow or blows in the face, causing his nose to bleed copiously; called him harsh names; attempted to seize and arrest him; struck him several other blows; went down stairs, and threatened to go back and continue his violence.
    The Chief Justice, before whom the issues were tried, charged the Jury that if the defendant went to the plaintiff’s office for a malicious purpose to injure the clerk or the plaintiff, the Jury would have a right to give beyond the actual damage sustained, what was called punitory damages.
    If the defendant went to the plaintiff’s place of business with the malicious intent of provoking a quarrel with the clerk, in case he was not paid, so as to commit any violence there instead of elsewhere, even without a deliberate purpose to commit violence, the damages could not be considered excessive, under any of the rules laid down as to excessiveness, (3 Grab. & Wat. H. Trials, 1127, 1134.) The only question is whether he went there for such purpose.
    The testimony in the case shows that the defendant, in company with another person, went to the place in question, after the plaintiff had left, late in the afternoon, and demanded payment of the debt, amounting to $28; the clerk said he could not pay, to which defendant replied, according to the testimony of his companion, he came for the express purpose, and he would make him pay. The defendant then struck the clerk two or three times in the face, probably with a railing between them, so violently as to cause his blood to spirt about the place to the extent of a teacupfull. The clerk called out of the window, and brought some persons from below, who found that the defendant’s passion, if any, had so far subsided that he was writing’ on a card. He then recommenced his misconduct by calling the clerk “a thief,” and striking him again two or three times, and was only prevented from continuing his violence by one of the persons whom the clerk’s cries had brought to his assistance. He then went down stairs, and on his way down threatened to go back and “give him more.” Ho excuse is offered for the outrage, except that the clerk, after being told that the defendant meant to make him pay, laid his hands upon his collar. The defendant’s companion testified they clinched. Whether the clerk did so or not, in consequence of some demonstrative gesture of the defendant, does not appear. At all events, his previous language that he came on purpose, and would make the clerk pay, after he was told by him that he could not pay, would seem to imply that there was something in his attitude or gestures threatening violence of some kind. The violent blows given, and, after an interval, renewed, were not only unwarranted, but utterly unpalliated by any previous conduct of the clerk. And the Jury were fully justified in not only believing that the defendant committed the assault to punish the clerk for not paying him the money he demanded, but that he came upon the premises with the intention of doing so, or meant to provoke the clerk to do some act which might seem to warrant his retaliating with a hundredfold violence.
    There is therefore no reason for interfering with the verdict on the ground of excessiveness of damages.
    • The other objection was founded on a refusal to dismiss the complaint, because a lease was not produced. The plaintiff had testified that he had an office in South street, into which he went about three months before a certain date; he was also there at another time, and leased from a Mr. Harkness and Mr. Webb. He did business in that office, and paid the rent for it. No objection was made to the admission of such testimony, but on cross-examination he stated he had not the lease in Court., Harkness also testified that the plaintiff occupied such office over a year. A motion then made, on behalf of the defendant, to dismiss the complaint upon the ground that there was not evidence of legal title in the plaintiff, the lease not being produced, was denied.
    It is very evident that no objection was made to the introduction of parol evidence of the contents of the lease, if the plaintiff’s testimony was such; and if it was not, the fact that the lease had not been produced was only made a ground of the defendant’s motion for dismissal of the complaint, and not as a separate objection. But such production was not necessary. The action was brought for an injury to the possession, since every trespasser assumes domiuion in committing acts of trespass; which is an assertion of the right of possession, and to that extent injures the party’s right who is trespassed upon.
    The evidence in the case established possession in the plaintiff under a claim of right by a written instrument, which is enough against a wrong-doer, who does not justify under any title at all. The exception was therefore untenable.
    • The motion for a new trial is therefore denied, with ten dollars costs.
    The defendant now appealed from the judgment entered on the verdict, and from the order denying a new trial entered upon the foregoing decision of Mr. Justice Robertsoh.
    
      James T. Brady, for appellant, urged that the evidence did not sustain the recovery.
    
      Anthony R. Dyett, for respondent, cited 19 Conn., 300 ; 3d Grah. & W. on New Trials, 1286,1290,1291 ; 3 Sandf., 341 ; 2 Southard, 518 ; 3 Brevard, 417 ; 15 Johns. R., 493 ; 3 Sandf., 19.
   By the Court—Mohcrief, J.

The reasons assigned by the Justice at Special Term, upon denying the motion for a new trial, are sufficient, satisfactorily to dispose of this appeal and to affirm the judgment and order.

In Hunt v. Bennett, (19 N. Y. R., 173,) the Judge had charged the Jury that “ the plaintiff was not only entitled to recover to the full extent of the injury done him, but a Jury might go further, and, if the circumstances of the case warranted it, increase the amount of damages as a punishment to the slanderer;” and to this charge the defendant had excepted. Upon the hearing of the appeal, “the Counsel for the appellant, on commencing the discussion of the exception to the Judge’s charge in respect . to punitive damages, was stopped by the Court and informed that the question luid been settled against him in the Court of Appeals in unreported cases, the last of which (Keezeler v. Thompson), was decided in December, 1857.” (Id., 175.)

In the present action, the Jury, under proper instructions from the Justice presiding at the trial, (to which instructions no exception was taken,) must be deemed to have found, as a matter of fact, that the defendant “wrongfully entered and made a disturbance in the office of the plaintiff, at Ho. 154 South street, in the City of Hew York.” This was the material issue to be tried between the parties.

An examination of the testimony in the case has not induced either the Justice presiding at the trial (under § 264 of the Code), or the Justice presiding at the Special Term, to interfere with the verdict found by the Jury; and a very careful scrutiny of all the evidence has not led me to call in question the entire fairness and justice of such finding. The damages may be large but are not excessive. (See 5 Taunt., 442 ; 10 Serg. & Rawle, 399 ; 2 South., 518 ; 1 id., 61 ; 6 Peters, 272 ; 2 Wils., 405 ; 3 Dev. [N. C.], 55 ; 4 Mass. R., 1 ; 12 Johns., 234 ; Starkie, 1451 ; 4 Denio, 464 ; 12 Conn., 580 ; Sedg. on Dam., 35, 204.)

The exceptions taken at the trial are not well founded and were properly overruled.

The judgment and order must be affirmed.  