#### Ethel O’Dell, an Infant, by Mamie O’Dell, Her Guardian ad Litem, Respondent, *v.*Arthur K. Bonta, Appellant.

First Department,

June 6, 1913.

Crime — assault — evidence — occurrences prior to alleged assault —. charge.

In an action to recover for an assault alleged to have been committed on the afternoon of a certain date, the admission of testimony by the plaintiff, over the objection of the defendant, as to certain happenings between the plaintiff and defendant on the day preceding the alleged assault, and on the morning thereof, for the purpose of showing that the defendant had 'asked the plaintiff to meet him on the morning of the assault, at which time he endeavored to have her enter a house for improper purposes, the sole effect of which testimony was to cause the jury to view with suspicion the defense of a discharge of the plaintiff for cause, unaccompanied by any assault, in which the defendant was corroborated by the testimony of his wife, and the refusal of the court to charge that the jury could in no event award plaintiff damages for the alleged occurrences on the morning of the day when the assault occurred, constitute reversible error entitling the defendant to a new trial.

Appeal by the defendant, Arthur K. Bonta, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of February, 1913, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 28th day of February, 1913, denying the defendant’s motion for a new trial made upon the minutes. „

*Louis Lowenstein,*for the appellant.

*Charles Coldzier,*for the respondent.

Dowling, J.:

The action is brought to recover for an assault alleged to have been committed by defendant on plaintiff on or about July 14, 1911, at a certain hotel in the city of New York. Upon the trial it appeared that plaintiff had been employed by defendant at the hotel in question as a telephone operator. Before testifying to the facts of the alleged assault plaintiff was permitted, over the objection and exception of the defendant’s *350counsel, to testify to certain happenings between the plaintiff and defendant on the day preceding the alleged assault, namely, July thirteenth, as well as on the morning of July fourteenth. The purpose of this proof was to show that the defendant had asked the plaintiff to meet him on the morning of July fourteenth, at which time, when she met him pursuant to the appointment, he endeavored to have her enter a house with him for improper purposes. The assault is claimed to have taken place at the defendant’s hotel at two o’clock on the afternoon of the day in question, and the episodes referred to had no connection whatever with the assault, were not relevant to any of the issues in the case, and the plaintiff should not have been allowed to testify thereto upon her direct examination. The sole effect of this testimony was to inflame the jury against the defendant and to cause' them to view with suspicion the defense which he sought to establish of a discharge of the plaintiff for cause, unaccompanied by any assault whatever by him upon her, in which he was corroborated by the testimony of his wife that she had been the one who had pushed plaintiff out of the hotel office when she made a scene after her discharge, and that the defendant had no part whatever therein.

•The learned court refused to charge that the jury could, in no event, award plaintiff damages, punitive or otherwise, for the alleged occurrences on the morning of July fourteenth, and his refusal so to charge in the face of the acceptance of the testimony constituted reversible error, entitling the defendant to a new trial. For that reason, as well as for the receipt of the improper evidence referred to, the judgment and order appealed from will be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.