O'Shea v. McLear — 16 N.Y. St. Rep. 482

Majority

p. 482

Amy O’Shea, Resp’t, v. George McLear, App’lt.

(Supreme Court, General Term, Third Department,

Filed May, 1888.)

Headnote

1. New trial—When order for rests in discretion of trial judge.

As a general rule, the verdict of a jury will be regarded as conclusive-upon a question of fact, but where it is arrived at by an evident sacrifice of principle the trial judge may, in his discretion, vacate it and direct a new trial.

2. Same—Terms imposed on granting.

Where such action is taken by the trial judge the payment of costs should be imposed on the party at whose instance the new trial was ordered.

Appeal by the defendant from an order made by the court at the circuit granting a new upon the merits.

Thomas Spratt, for app’lt; John C. Keeler, for resp’t.

The new trial herein was granted by the justice who tried the cause at the circuit ; and we may confidently assume that he was familiar with the facts of the case, and therefore favorably situated to determine whether or not the verdict of the jury, in regard to the amount of damages awarded to the plaintiff, was justified by the evidence. While it is true, as a general rule, that the verdict of a jury will be regarded conclusive upon a question of fact when the evidence is conflicting, and inferences are to be drawn therefrom, yet such rule is subject to exceptions. Our examination of the case has convinced us that the learned justice exercised a sound discretion in vacating the verdict of the jury and directing a new trial. It would seem, from the facts, that the jury could not have agreed upon so insignificant a sum, as their award of damages to-the plaintiff, without the sacrifice of principle. Doubtless-the verdict was the result of a compromise of the most objectionable type. Having reached the conclusion that the plaintiff had established a cause of action, it was their duty to award to her a reasonable compensation for the injury which she had sustained. The order appealed from should be affirmed, except in one particular, viz.: As the verdict was set aside and the new trial directed, upon the ground that it was against the evidence, costs of the circuit should have been imposed as a condition, to be paid by the plaintiff

p. 483

to the defendant, instead of direction that they abide the event of the action. This rule seems too firmly established to be departed from even in a case of seeming hardship. Bailey v. Park, 5 Hun, 41 ; Kelly v. Frazier, 27 id., 314.

Upon reflection we conclude that the defendant has done no act, or omitted any duty, which can properly be construed into a waiver of his right to such costs. The order must be corrected in the particular indicated, and as thus amended should be affirmed.

No costs of this appeal should be awarded to either party.

Learned, P. J., and Landon, J., concur.