Opinion
November 22, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ.
Appeal by defendants from a judgment of the Supreme Court entered upon a verdict awarding to plaintiff damages of $3,000 in an assault action. The testimony was in sharp dispute as to the onset and continuance of the fracas which concededly occurred but there appears no reason for disturbing the jury's finding consistent with plaintiff's version. He testified that as he was photographing the defendants while they were upon property involved in litigation between these same parties, defendant Vivian A. Frankel threw a stone at him and that as he dropped his camera and "shielded" himself from the stone, all the defendants "came at" him. He said that he was struck several blows, one of which, inferentially from a club, stunned him, and he was lacerated and otherwise injured. The trial court instructed the jury in the usual definitions of assault, including the statement that "Threatening gestures may constitute an assault unless the parties are so distant from each other that immediate contact is impossible", and, there being no claim that the defendants acted in concert or aided and abetted each other, charged that recovery against any defendant would depend upon the finding of an assault by that particular defendant. The court further charged the rules as to compensatory and punitive damages with no instruction as to segregation of monetary damages as against two or more defendants found liable. Indeed, the damages, including those attributable to the activities initiated by Miss Frankel, would seem to be indivisible; but, in any event, there was no exception to this, or to any part of the charge, no requests to charge were made and the form of the jury's verdict, when returned, was not objected to. The weight of the evidence adduced in identification of the clubs or sticks received in evidence was for the jury. Judgment unanimously affirmed, with costs.