Kaplan v. Metropolitan Street Railway Co. — 52 A.D. 296

Majority

p. 296

Morris Kaplan, Respondent, v. Metropolitan Street Railway Company, Appellant.

Headnote

A verdict for §5,000 is excessive, where earning capacity has not been affected.

In an action brought to recover damages for personal injuries, in which no evidence was given showing that the plaintiff’s earning capacity had been, or would be, affected, to any great extent, by the injuries, the- Appellate Division considered that a verdict of §5,000 was excessive and should be reduced to §3,500.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the-plaintiff, entered in the office of the cleric of the county of New York on the 11th day of January, 1900, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 1st day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Charles F. Brown, for the appellant.

Joseph I. Green, for the respondent

The plaintiff had a verdict of $5,000 for personal injuries, which, after a careful consideration of the record before us, we think is largely in excess of the damages sustained by him, The evidence adduced upon the trial does not show that his injuries have affected, or will affect to any great extent, his earning capacity. Under such circumstances we think a verdict of $5,000' ought not to stand, and,, therefore, the judgment and order denying a motion for a new trial are reversed and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff will stipulate to reduce the damages recovered to $2,500 and the extra allowance granted to $100,,

p. 297

thereby reducing the judgment as entered to the sum of $2,784.06 ; in which case judgment as so reduced and order denying motion for new trial are affirmed, without costs to either party.

Present-—-Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ.

Judgment reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulate to reduce judgment as entered to $2,784.06; in which case judgment as so reduced and order denying motion for new trial affirmed, without costs to either party.