Keenan v. Fifth Avenue Coach Co. — 220 A.D. 432

Majority

p. 432

Margaret Keenan, as Administratrix, etc., of Mary J. Keenan, Deceased, Appellant, v. Fifth Avenue Coach Company, Respondent.

First Department,

May 6, 1927.

Headnote

Trial — reduction of verdict —• trial justice determined to set aside verdict unless plaintiff consented to reduction to $7,000 without interest or costs” — stipulation omitted words “without interest or costs ” — ■ court had no power under stipulation to order judgment for $7,000 inclusive of interest and costs.

A verdict was rendered in this action for $9,950 but the trial justice granted defendant’s motion to set the verdict aside unless the plaintiff would consent to a reduction of the verdict to $7,000 “ without interest or costs.” The stipulation omitted the words “ without interest or costs,” and a judgment was entered for $7,000 plus interest and costs. While it was the intention of the court to limit the total amount of the judgment to $7,000 the stipulation did not have that effect and the court had no power to order a judgment for that amount.

The judgment is vacated and the motion to set aside the verdict and for a new trial is granted unless the plaintiff stipulates to reduce the judgment to such sum as together with interest and costs will amount to $7,000.

p. 433

Appeal by the plaintiff, Margaret Keenan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of March, 1927, resettling an order made on the 31st day of January, 1927, denying defendant’s motion for a new trial made upon the minutes, and reforming a judgment entered upon a prior order by taking therefrom interest and costs.

Ben B. Mittler, for the appellant.

Ambrose Clogher of counsel \Henry J. Smith, attorney], for the respondent.

This cause was tried before the court and a jury and resulted in a verdict in favor of the plaintiff in the sum of $9,950. Upon the rendition of the verdict the defendant made a motion to set the verdict aside and for a new trial. The trial justice decided to grant the motion unless the plaintiff consented to a reduction of the verdict to $7,000, without interest or costs. The plaintiff filed a consent and stipulated to reduce the verdict to the sum of $7,000 which omitted therefrom the words “ without interest or costs,” and thereafter entered judgment for $7,000 plus interest and costs, amounting in all to $8,061, on February 7, 1927.

On February 23, 1927, the defendant moved for the resettlement of the order and reformation of the judgment to conform to the decision, and said motion was granted and an order pursuant thereto entered on March 2, 1927, and it is from that order the plaintiff appeals.

It is apparent that the intention of the trial justice was to reduce the verdict to such a sum that the judgment with interest and costs would amount to no more than $7,000. The stipulation filed by the plaintiff had not that effect. Therefore, the court had no power to order judgment for that amount.

The order should, therefore, be modified by vacating the judgment herein entered February 7, 1927, and granting the motion to set aside the verdict and for a new trial, unless plaintiff stipulates within ten days from service of the order to be entered hereon to reduce the judgment to such a sum as, together with interest to be added by the clerk and costs, will amount to $7,000, and as so modified affirmed, with ten dollars costs and disbursements of this appeal to the appellant.

Dowling, P. J., Mereell, Finch and Proskauer, JJ., concur.

Order modified as indicated in opinion and as so modified affirmed, with ten dollars costs and disbursements to the appellant. Settle order on notice.