Bolles v. Heckman — 119 N.Y.S. 154

Majority

p. 154

BOLLES v. HECKMAN.

(Supreme Court, Appellate Term.

November 12, 1909.)'

Headnote

New Trial (§ 161*)—Setting Aside Verdict—TErms.

Where the jury found on sufficient testimony in plaintiff’s favor on the main issues, and erred, through no fault of plaintiff, only in the amount allowed for damages, terms should have been imposed as a condition for setting aside the verdict on the ground that the amount of the damages clearly indicated a compromise and- was unsupported by the evidence.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 321-323; Dec. Dig. § 161.*]

Appeal from City Court of New York, Trial Term.

Action by Lillie H. Bolles against Charles Heckman. From an order setting aside the verdict and granting a new trial, plaintiff appeals.

Modified, and, as modified, affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

Cass & Gibson (Burton W. Gibson, of counsel), for appellant.

. Ormiston & McCormack (T. S. Ormiston, of counsel), for respondent.

While the court below seems to have been warranted in setting aside the verdict in favor of the plaintiff on the ground that the amount of the damages clearly indicated a compromise and was unsupported by the evidence, still, inasmuch as the jury found upon sufficient testimony in favor of the plaintiff on the main issues in suit, and erred, through no fault of plaintiff, only in the amount allowed for damages, terms should have been imposed as a condition for setting aside the verdict. Murphy v. Interurban St. Ry. Co. (Sup.) 88 N. Y. Supp. 187 .

It seems to us that the order should be modified, by imposing as a condition- for the granting of the same the payment of a sum equal to costs before and after notice of trial, one term fee, and a trial fee, and, as so modified the order is affirmed, without costs to either party of this appeal.