Majority
p. 91KAPLAN v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. June 8, 1900.) Argued before VAN BRUNT, P. J., and EUMSEY, McLAUGULIN, and INGRAHAM, JJ.
Headnote
1. Personal Injuries—Earning Capacity—Excessive Damages.Where the evidence in a personal injury case does not show that plaintiff’s injuries have or will affect his earning capacity to any great extent, a verdict for $5,000 is excessive.
2. Same—Stipulation eor Reduction—New Trial—Plaintiff’s Option.
Where a verdict for personal injuries is found excessive, plaintiff will be given the option to stipulate for a reduction of the recovery to an amount deemed proper by the appellate court, or to have the order of the trial court denying defendant a new trial reversed.
Appeal from trial term, New York county.
Action by Morris Kaplan against the Metropolitan Street-Bailway Company. From a judgment in favor of plaintiff, and an order denying defendant’s motion for a new trial, defendant appeals.
Modified.
Charles F. Brown, for appellant.
Joseph I. Green, for respondent.
The plaintiff had a verdict of f5,000 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. Un
p. 92
der 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, 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.