Koester v. New York City Railway Co. — 96 N.Y.S. 117

Majority

p. 117

KOESTER v. NEW YORK CITY RY. CO.

(Supreme Court, Appellate Term.

November 29, 1905.)

Headnote

Appeal—Second Reversal.

Where, after the reversal on a former appeal of a judgment for plaintiff on the ground that the evidence preponderated in defendant’s behalf, a second trial resulted in a verdict for plaintiff, and plaintiff’s evidence on both trials, if believed, would have justified the verdict, there being nothing to indicate that the jury were influenced by passion or prejudice, a second reversal on a pure question of fact is not justified.

Appeal from City Court of New York.

Action by Joseph Koester against the New York City Railway Company. Judgment for plaintiff, and defendant appeals.

Reversed, unless plaintiff stipulate to reduce the judgment to $1,159.90, in which case the as reduced, to be affirmed.

Argued before SCOTT, P. J., and GIRDERSEEEVE and Mac-LEAN, JJ.

Bayard H. Ames, for appellant.

Charles Steckler, for respondent.

On a former appeal a judgment in favor of plaintiff was reversed, because in the opinion of this court the evidence preponderated in behalf of the defendant. 90 N. Y. Supp. 375 . On the second trial, with a record subject to no legal objection, the jury have again found in plaintiff’s favor. On both trials the plaintiff’s evidence, if believed, would have justified the verdict. There is nothing to indicate that the jury were influenced by passion, prejudice, or partiality, and I do not think that we can justify a second reversal upon a pure question of fact. The verdict was, however, in my opinion excessive, and should be reduced.

The judgment will therefore be reversed, and a new trial granted, with costs to appellant to abide the event, unless the plaintiff will stipulate to reduce the judgment to $1,159.90, in which case the judgment, as reduced, will be affirmed, without costs of this appeal. All concur.