Carpenter v. Miles — 71 N.Y. St. Rep. 154

Majority

p. 154

Sabina Carpenter, Resp't, v. Andrew B. Miles.

(Supreme Court, General Term, Fourth Department,

Filed December 26, 1895.)

Headnote

Appeal—Discretion.

, A new trial, as to the extent of the damages, is addressed to the discretion of the trial court and the exercise of its discretion will not be disturbed on appeal.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

John Conboy, for app’lt;

I. R. Breen, for resp’t.

We have looked carefully through the evidence given at the trial, and are bf the opinion that it sustains the verdict. It was for the jury to resolve the sharp and stubborn conflict furnished by the different witnesses. The charge of the learned county judge fairly presented the questions of fact to the jury, and he instructed the jury that, if they found malice on the part of the defendant, they might give punitive damages. We are not willing to disturb the verdict by reason of the amount thereof to wit, $500: Besides, the motion for a new trial, as to the extent of th% damages, was addressed to the discretion of the court. We ought” not to disturb the conclusion reached by that court in the exercise of its discretion. Code, § 1340, as amended in 1895 (1 Laws 1895, p. 840); Thomas v. Keeler, 52 Hun, 318 ; 23 St. Rep. 436 ; Tucker v. Pfau, 70 Hun, 59 ; 53 St. Rep. 553 ; Kincaid v. Richardson, 25 Hun, 237 , 239 ; Wright v. Chase, 77 id., 90; 59 St. Rep. 865 ; Reilley v. President, etc., Delaware & H. Canal Co., 102 N. Y. 383 ; 2 St. Rep. 419 ; Clark v. Eldred, 54 Hun, 5 ; 26 St. Rep. 61 . No exceptions were taken during the trial which justify us in interfering with the verdict of the jury.

Judgment and order affirmed, with costs.

Martin, J,,.concurs; Merwin, J., concurs in the result.

Cases cited

Reilley v. President 102 N. Y. 383 N.Y. 1886-06-01 p. 154