Thaule v. Krekeler — 24 N.Y. Sup. Ct. 338

Majority

p. 338

HENRY W. THAULE, Respondent, v. MARGARET M. KREKELER, Appellant.

Headnote

When the General Term cannot redmce damages — Code of Civil Procedure, section 1317.

Under section 1317 of the Code of Civil Procedure the court at General Term has no power to reduce the damages awarded by the verdict of a jury in an action for malicious prosecution, but must either reverse or affirm the judgment.

Motion for a ro-argument.

This action was brought to recover damages for a malicious prosecution. The plaintiff recovered a judgment for $3,500.

Upon an appeal, the General Term, in October, 1878, directed that the “ motion for a new trial be granted on payment of costs of former trial, unless plaintiff shall, within twenty days after entry of this order, stipulate to reduce the verdict to $1,800, in which case motion for new trial denied, and judgment affirmed as so reduced, without costs to either party.”

Peter Mitchell, for the appellant.

D. M. Porter, for the respondent.

Upon the hearing of this appeal on a former occasion we gave this case a careful examination, and concluded that none of the exceptions taken were available. We thought, however, upon an examination of section 1317 of the Code of Civil Procedure that the power of the court to diminish damages in an action of this nature were enlarged by this section. Subsequent examination has satisfied us that this was an error. The former order of the court was founded entirely upon the supposed power given by the section mentioned.

We are satisfied therefore that the rules established in this State by the decisions do not authorize us to reduce the damages in a case of this character. We can only reverse the judgment,

p. 339

but have no power to clo that unless we are satisfied that the jury acted from undue motives, or under gross error.

We have reached no such conclusion with regard to the action of the jury in this case. For these reasons the judgment should be affirmed.

Present- — -Davis, P. J., Beady and Potteb, JJ.

Judgment affirmed.