Tuxedo Automobile Station v. Lyman — 88 N.Y.S. 1008

Majority

p. 1008

TUXEDO AUTOMOBILE STATION v. LYMAN.

(Supreme Court, Appellate Term.

June 23, 1904.)

Headnote

1. Verdict—Compromise—Misunderstanding oe Evidence.

Where plaintiff claimed $398.18, and there was no evidence of any diminution of the value put on any of the items, except as to two aggregating $76, but the jury found for plaintiff for $100, a new trial should be had; it appearing that the jury either compromised, or misunderstood the evidence.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by the Tuxedo Automobile Station against John Grant Lyman. From a judgment for plaintiff for less than its demand, it appeals. ' Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ.

Marshall S. Marden, for appellant.

Morris J. Hirsch, for respondent.

It is difficult to divine just the way by which the jury arrived at a reduction to a round sum of $100 of the amount claimed, $398.18, for supplies furnished for and work done upon the defendant’s automobile, inasmuch as, excepting as to two, aggregating $76, no evidence was given of any diminution of the value put upon any of the items, ór contradiction offered that the supplies were furnished or the work done. It is difficult to avoid the conclusion either that the verdict was the result of a compromise or that the jury misunderstood and disregarded the testimony. In either case justice would be better served by ordering a new trial.

Judgment reversed and new trial ordered, with costs to appellant to abide the event. All concur.