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Gumb v. Twenty-Third Street Railway Co.

58 N.Y. Super. Ct. 559 26 Jones & S. 559 Court N.Y. Super. Ct. Decision date 1890-03-04 English

Contents

Majority

p. 559
CHARLES B. GUMB, Respondent v. THE TWENTY-THIRD STREET RAILWAY COMPANY, Appellant.

Headnote

Remission of portion of verdict, court at special term at chambers has power to permit it under § 1189 Code Civil Procedure.
Before Sedgwick, Ch. J., and Dugro, J.
Decided March 4, 1890.
In this case the jury rendered a verdict for the plaintiff for $500. Before entry of judgment plaintiff’s attorney filed a stipulation to remit one dollar of the verdict. Judgment was entered for the reduced amount and costs.
p. 560
Thereafter defendant’s counsel moved to vacate the judgment for irregularity, on the ground that it was not in conformity with the verdict ; and plaintiff’s counsel moved for leave to remit one dollar of the verdict and that such leave be granted nunc pro tunc.
The motions were heard together. That of defendant was denied and that of plaintiff was granted. From the order entered on the decision defendant appealed.
Leslie W. Russell, attorney and of counsel, and Welton C. Percy of counsel, for appellant.
H. B. Closson, attorney and of counsel, and C. M. Hough of counsel, for respondent.'

The court at special term had discretionary power to make the order appealed from. The court last referred to in § 1189 of the Code of Civil Procedure is the trial court and the court at special term.

No such inference as is claimed by the appellant can fairly be drawn from the fact of the appearance in the Code of sections 3016 and 3176. These provisions were incorporated in the Code in order to make it matter of absolute right for a prevailing party to remit part of a verdict, and to render an application to the court unnecessary. In other proper cases the application is addressed to the discretion, of the court. It does not appear that there was an improper exercise of discretion in granting the order. It should, therefore, be affirmed.