Plaintiff has appealed from a judgment in favor of defendant and from an order denying his motion for a new trial. The action is one for assault and battery. Defendant is a police officer of the city of Albany. The proof is that on July 26, 1937, while defendant was in the performance of Ms duties as such police officer and while separating the participants in a fight, one of whom was plaintiff, he struck the plaintiff with Ms Mght stick. The jury found that the assault of plaintiff by defendant was justified. The evidence sustains the verdict. Judgment and order unanimously affirmed, with costs. Present — Hill, P. J., Crapser, Bliss and Heffernan, JJ.