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De Santis v. Luger

Court of Appeals of the State of New York
Nov 17, 1931
257 N.Y. 476 (N.Y. 1931)

Summary

holding that closing a door on the plaintiff could constitute a battery even though it was the door that made contact with the plaintiff rather than the defendant himself

Summary of this case from Rothman v. City of New York

Opinion

Argued October 22, 1931

Decided November 17, 1931

Appeal from the Supreme Court, Appellate Division, Second Department.

Milton M. Eisenberg and Ralph Weller for appellant.

Daniel Mungall for respondent.


In an action to recover damages for two assaults and batteries, one closely following the other, the trial judge permitted the jury to give damages for the first, but refused to allow a recovery for the second.

Both parties appealed from a judgment for $500 and costs in favor of the plaintiff, and both appealed from an order denying a new trial.

The order of the Appellate Division is obscurely phrased, but we think it may fairly be read as meaning that the judgment is unanimously affirmed in so far as it is appealed from by the defendant, but that it is affirmed, two justices dissenting, in so far as it is appealed from by the plaintiff. In that view, the decision is not unanimous, and an appeal may be taken by the plaintiff as of right.

The testimony as to the second assault, if submitted to the jury, would sustain a finding that the door of the defendant's dwelling was closed with sudden violence; that this was done with the design to strike the plaintiff who was peaceably approaching; that the force was unreasonable and dangerous; and that the plaintiff in trying to ward off the threatened blow struck his hand against the glass and was seriously injured.

The judgment, so far as appealed from by the plaintiff, should be reversed, the causes of action stated in the complaint should be deemed to be severed, and a new trial granted as to the second, with costs to abide the event.

CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.

Judgment accordingly.


Summaries of

De Santis v. Luger

Court of Appeals of the State of New York
Nov 17, 1931
257 N.Y. 476 (N.Y. 1931)

holding that closing a door on the plaintiff could constitute a battery even though it was the door that made contact with the plaintiff rather than the defendant himself

Summary of this case from Rothman v. City of New York
Case details for

De Santis v. Luger

Case Details

Full title:CHARLES DE SANTIS, an Infant, by HELEN DE SANTIS, His Guardian ad Litem…

Court:Court of Appeals of the State of New York

Date published: Nov 17, 1931

Citations

257 N.Y. 476 (N.Y. 1931)
178 N.E. 763

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