Zannone v. Pollino

Full title: Angelo A. ZANNONE, Plaintiff, v. Joseph POLLINO, Defendant

Court: City Court, Bronx County

Date published: Oct 4, 1956

155 N.Y.S.2d 836 (N.Y. City Ct. 1956)

Opinion

October 4, 1956.

Action was brought for assault, and defendant filed a counter-claim. The City Court, Gans, J., held that where several punches and kicks were exchanged in an altercation between plaintiff and defendant, and defendant then drew, a knife, opened the blade, clenched the knife in the fist of his right hand, and with his hand raised upward directed his clenched fist toward plaintiff and cut side of plaintiff's face, the use by defendant of the knife was a resort to wanton and excessive retaliatory force, rendering defendant liable in civil action for assault.

Judgment for plaintiff.

1. Assault and Battery 13

Rule permitting one to protect himself from bodily harm by force is subject to limitations in a civil action for assault, and the most fundamental limitation is that, in protecting oneself, no more force is permissible than will reasonably afford such protection.

2. Assault and Battery 7

Where several punches and kicks were exchanged in an altercation between plaintiff and defendant, and defendant then drew a knife, opened the blade, clenched the knife in the fist of his right hand, and with his hand raised upward directed his' clenched fist toward plaintiff and cut side of plaintiff's face, the use by defendant of the knife was a resort to wanton and excessive retaliatory force, rendering defendant liable in civil action for assault.

3. Assault and Battery 40

Where assault by defendant on plaintiff with knife resulted in a cut which left a linear scar, irregular in shape, about three millimeters in thickness and five inches in length, on plaintiff's left cheek, plaintiff was entitled to damages in the sum of $3,000.

4. Assault and Battery 12

Where altercation was provoked and commenced by defendant, his counterclaim in civil action for assault would be dismissed.

Consolazio Gulia, Mount Vernon (Eli Vigliano, New York City, of counsel), for plaintiff.

Friedman, Friedman Friedman, New York City (Richard D. Friedman, New York City, of counsel), for defendant.

GANS, Justice.

This is an action for assault. The facts as divulged during a non-jury trial, reveal that plaintiff, an employee of the Board of Transportation, was playing gin rummy with three fellow employees in the lunchroom of the car-barns at 180th Street in the Bronx, on March 4, 1954.

The game was in progress for about fifteen minutes when the defendant, another employee, entered the room. To observe the game, he stationed himself directly behind the plaintiff and another player. Shortly thereafter defendant made voluntary predictions of the cards that would be played and the result of the game. His participation was described by the witnesses as being that of a kibitzer. Webster's Dictionary defines "kibitzer" as "a looker-on at cards, a meddlesome spectator; one who gives gratuitous advice." Plaintiff admonished the defendant for making gratuitous comments and asked him to leave. Whereupon defendant commenced an exchange, with the plaintiff, of opprobrious, obscene, violent and indecent language. This provoked an altercation between them where several punches and kicks were exchanged. It is undisputed that defendant drew a knife from his trouser pocket, pulled the blade open, and clenched it in the fist of his right hand. With his hand raised upward, defendant directed his clenched fist toward plaintiff. Defendant holding plaintiff firmly around his shirt collar, the parties scuffled to a corner of the room. When blood was observed trickling from the left side of plaintiff's face, Gerald Pischera, one of the players, and a witness, ran to the scene, clenched defendant's right wrist releasing the knife. The room in which the incident occurred was approximately twelve by thirty-five feet. There were present about twenty other fellow employees. The defendant was the sole witness in his own behalf.

The plaintiff produced the three other card players whose testimony substantially corroborated his.

[1, 2] The rule permitting one to protect oneself from bodily harm by force is subject to limitations, the most fundamental of which is that in protecting oneself, no more force is permissible than will reasonably effect such protection. Under the circumstances in this case, I find that by using a knife, the defendant resorted to wanton and excessive retaliatory force.

The left side of plaintiff's face was cut. There is a linear scar, irregular in shape, approximately three millimeters in thickness by five inches in length, extending from the left sideboard downward towards the jaw. For the injury and pain suffered by him, the plaintiff is awarded damages in the sum of $3,000, and I direct that judgment be entered accordingly.

The fight in ring parlance was a draw until the defendant used the knife. I find that the altercation was provoked and commenced by the defendant and his counterclaim is dismissed. All motions on which decision was reserved are herewith denied. Findings of fact and conclusions of law having been waived, the foregoing embodies the decision of the court. Thirty days' stay and sixty days to make a case.