Nichols v. Sixth Avenue Railroad — 23 N.Y. Super. Ct. 260

Majority

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David O. Nichols, (by his Guardian, &c.,) Plaintiff and Respondent, v. The Sixth Avenue Railroad Company, Defendants and Appellants.

Headnote

When a suit has been regularly prosecuted to judgment, and substantial justice has been done, the parties are not entitled to invoke the interposition of the Court, for the purpose of having the cause retried and again determined, at the expense of the public, and to the delay of other suitors, although both of the litigants join in the application.

(Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)

Heard, December 10, 1862;

decided, February 28, 1863.

Appeal by the defendants from a judgment against them entered on a verdict, and from an order denying their application for a new trial.

This action was brought to recover from the defendants damages for injuries alleged to have been sustained by the plaintiff, David O. Mchols, an infant of the age of

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fifteen years, through the negligence of the defendants’ servants* while he was a passenger upon one of their cars. The damages were laid at $10,000.

On the first trial of the cause the plaintiff recovered $7,500 damages; but a new trial was granted on the ground that the verdict was excessive. On the second trial the Jury disagreed.

The third trial was had before Chief Justice Bosworth and a Jury, on the 6th day of March, 1862, and the plaintiff had a verdict .of $2,500.

The defendants moved for a new trial, on the ground that, upon the evidence, it appeared that the plaintiff, Mchols, was himself chargeable with negligence, which contributed to the injury. The motion being denied, and judgment having been entered, defendants appealed.

John Slosson, for defendants, appellants.

H. A. Cram, for plaintiff, respondent;—

Suggested that on the last trial, a juror had, from improper motives, compelled the jury to render a verdict smaller than the case demanded, and that it appeared by the evidence to be unjustly small for the injury sustained, and stated that for these reasons, the plaintiff was willing that the judgment should be reversed; and that he prayed that the Court would reverse the judgment, without passing on the questions of law argued by the appellant ; and that such questions the respondent declined to argue, and did not argue, but proposed to argue at some future time, when a verdict proper in amount should have been rendered.

The fact that the respondent is dissatisfied with the verdict he has obtained, and, by his counsel, urges the Court, upon the hearing of this appeal, to reverse the judgment, and direct a new trial, in accordance with the prayer of the appellant, is not, of itself, sufficient to warrant such action on the part

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of the Court. When a suit has regularly and properly been prosecuted and defended to a final judgment, by which substantial justice has been decreed, the parties are not entitled, as of right, and without sufficient reason, to evoke the interposition of the Court for the purpose of having the cause retried, and again determined, at the expense of the public, and to the delay of other creditors, although both of the litigants join in the application.

It is not claimed, in this case, that a new trial will enable either party to present the matter to the Jury in an aspect different, in any respect, from that which it bore at the former trial. Uor can I perceive that any error was committed by the Judge in refusing to charge the Jury in the particular form specifically requested by the defendants’ counsel. The charge, as delivered, covers, substantially, all that was material in those requests; and embodies everything that it was necessary or proper for the Judge to tell the Jury upon that subject. #

I see no reason, therefore, for disturbing the judgment.