Draper v. Interborough Rapid Transit Co. — 121 N.Y.S. 1129

Majority

p. 1129

DRAPER v. INTERBOROUGH RAPID TRANSIT CO. et al.

(Supreme Court, Appellate Division, First Department.

March 11, 1910.)

Headnote

Appeal from Trial Term, New York County. Action by Sarah A. Draper, administratrix, against the Interborough Rapid Transit Company and another. From a judgment for plaintiff, and orders denying motions to dismiss the complaint and for a new trial, and granting a motion for an extra allowance, defendants appeal. Affirmed as to the mentioned defendant, on condition that remittitur be made; reversed, and new trial ordered as to the other defendant.

Lemuel E. Quigg, for appellants.

Roger Foster, for respondent.

Judgment and order against the Rapid Transit Subway Construction Company reversed, upon the ground that the verdict is against the weight of evidence, and a new trial is ordered, with costs to the appellant to abide the event. Judgment and order against the Interborough Rapid Transit Company reversed, and a new trial ordered, unless plaintiff stipulates to reduce recovery to $15,000, in which case the judgment against the Inter-borough Rapid Transit Company, as so reduced, is affirmed, without costs on this appeal. This not being a proper case for an extra allowance, the extra allowance is stricken out.

McLAUGHLIN, J„ dissents as to the Inter-borough Rapid Transit Company, on the ground that the judgment should be reversed, and a new trial ordered.