p. 986Joseph Feiber, App’lt, v. Joseph B. Lester, Jr., et al., Resp’ts.(Supreme Court, General Term, First Department,Filed February 11, 1891.)Headnote
1. New trial—Excessive damages.An appellate court will not interfere with an order of the trial judge setting aside a verdict on the ground of excessive damages, especially where the case does not state that all the evidence is contained in it. In such case the presumption arises that there was other proof fully warranting the action of the court.
2. Appeal—Objections not raised below.
An objection that payment of the costs of trial was not made a condition of setting aside a verdict for excessive damages, or because unsupported by the evidence, cannot be raised for the first time on appeal.
Appeal from an order setting aside a verdict and directing a new trial.
Henry H Goldfogle, for app’lt; B. 0. Ohetwood, for resp’ts.
The verdict was for $175.50 as a compensation for a motion made in the city court to vacate an attachment. The motion was not attended with much labor or attention, and re-
p. 987suited in the attachment being set aside as unauthorized, and this action was brought against the persons who executed the undertaking, for the services of the counsel making the motion. The court at the trial considered that the jury had transcended the proper effect of the evidence in their adjustment of the damages, and, from the nature of the services rendered, there is reason for believing that this view was correct. The witnesses gave their evidence before, and were observed by the j ustice presiding. And liis conclusion that the verdict was unsatisfactory is entitled to have weight in the disposition of the appeal. The inclination of the justices of this court is to refrain from interfering with verdicts, when that can reasonably be avoided. And that will ordinarily produce the belief that the verdict was wrong when the court at the trial has felt bound to set it aside. The case, as it has been made, does not deprive that belief of its foundation, for it fails to state that all the evidence has been included in it, and, in that condition of it, the presumption arises that there was other proof fully warranting the action of the court, even if there was uncertainty on the evidence so far as it had been presented.
Ordinarily, the payment of the costs of the trial is made a condition in the order setting aside a verdict for excessive damages, or because it may be unsupported by the evidence. But that practice does not appear to have been brought to the attention of the court in this instance. And that should have been done if it had been intended to claim such costs. It is to be inferred from the language of the order that it was entirely omitted; and for that reason the objection that the order was defective in this respect cannot be first made on the hearing of the appeal. The place to invoke its application was when the order was settled or entered. That not having been done, the respondent has lost the right now to complain. The order should be affirmed, with costs.
Van Brunt, P. J., and O’Brien, J., concur.