Sherman S. Jewett, Jr., an Infant, by Sherman S. Jewett, His Guardian ad Litem, Appellant, v. Frank R. Moll, Respondent

Fourth Department, July, 1920. Sherman S. Jewett, Jr., an Infant, by Sherman S. Jewett, His Guardian ad Litem, Appellant, v. Frank R. Moll, Respondent. Trial &emdash;• action for assault and battery &emdash; verdict &emdash;■ when verdict should be directed for plaintiff. Appeal from a judgment of the County Court of Brie county in favor of the defendant, entered in the office of the clerk of said county on the 23d day of October, 1919, and also from an order entered in said clerk’s office on the 22d day of September, 1919, denying plaintiff’s motion for a new trial. [MAJORITY — Per Curiam:] Per Curiam: We are of the opinion that the plaintiff was entitled to a directed verdict, leaving only the question of damages to the jury, and that the jury should have been so directed, as was requested on behalf of the plaintiff. While, under the evidence, the jury could have found that the plaintiff sustained no substantial damages, and rendered a verdict for nominal damages only, we cannot say the jury would have rendered such a verdict, and not for substantial damages, if correctly instructed. The jury may have received the erroneous impression from the charge that the assault was justified and plaintiff not entitled to recover, although he sustained serious injuries from the 'assault, as he and his witnesses testified. The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur. Judgment and order reversed and new trial granted, with costs to appellant to abide event.