Delmage v. Crow

22 Misc. 511, 49 N.Y.S. 1004

• Court: City of New York Municipal Court
• Decided: February 15, 1898
• Status: Published

Opinion

Fitzsimons, Ch. J.

The complaint herein is certainly one for assault and battery and the words, which defendant’s counsel claims set forth a cause of action for slander, were not, in our opinion, pleaded for any such purpose, but merely allege an inci- • dent of the assault and were set out for the purpose of showing. the malicious and evil intent and design of the defendant towards .the plaintiff at the time he committed the assault.

Viewed in that light, we think that such words were properly embraced within the complaint, as it was proper and permissible for the trial justice to permit the utterance to be testified to upon the trial, so as to enable the jury to fix the proper rate of damages to be awarded to the plaintiff.

As to the alleged release, we think it was proper for the. trial ' justice to submit to the jury the question, “ Was it obtained under duress? ” It appears that the plaintiff was informed that unless she signed the same, she would be kicked off the car. She was, a young woman, in a strange land, among strangers, apparently with no one holding out a helping hand to her, and knowing well' what would happen to her'if she did not sign said .paper.

I think, under the circumstances and the threat made against her, it was proper to let the jury determine as a matter of fact whether or not in signing said paper she acted freely or was under duress.

■ We agree with the defendant’s attorney, that under the evidence the jury might just as easily have decided in defendant’s favor as in plaintiff’s favor, because the evidence was flatly contradictory, but as they chose to believe the plaintiff and her witnesses we shall not disturb their conclusions. We affirm the judgment, with costs. . ¡

McCarthy and O’Dwyer, JJ., concur.

' Judgment affirmed, with costs.