On the evening of April 20, 1901, the defendant entered the office of the plaintiff, who was an editor of a newspaper published at Waverly, F. Y., and assaulted him. There was no immediate provocation for such assault. The plaintiff had published certain articles in his newspaper which the defendant deemed derogatory to his character. The last of these had been brought to the attention of the defendant some hours before the assault. Thé verdict of the jury, fully justified by the evidence, establishes that the assault was without justification, and the only questions to be con
The ruling that plaintiff was entitled to a verdict for some amount was,correct. The evidence of the assault and that it was unjustifiable was without dispute. The defendant in his own evidence established a cause of action against himself. The only question, therefore, for the jury was the amount of damages. The rule is well stated in Bulger v. Rosa (119 N. Y. 464): “ The test of the right to direct a verdict is whether the court would be bound to set a verdict aside as against evidence if rendered against the party in whose favor it was directed. If .this would be the duty of the court the judge need not await the verdict before acting, but in advance may rule the question as one of law.” (See, also, Dwight v. Germania Life Ins. Co., 103 N. Y. 359.) In the present case there is no conflict of evidence that the assault was committed and that it was without justification. The decision of the learned trial justice, in this respect was, therefore, correct.
Judgment and order unanimously affirmed, with costs.