Opinion
July 13, 1970
In a negligence action to recover damages for personal injuries sustained by plaintiff's intestate, plaintiff appeals from two orders of the Supreme Court, Westchester County, as follows: (1) from an order dated February 20, 1969 which granted defendants' motions for a new trial unless plaintiff would stipulate to reduce the amount of the jury verdict from $20,000 to $10,000 and (2) as limited by his notice of appeal and his brief, from so much of an order dated April 29, 1969 as, upon granting plaintiff's motion to resettle the first order so as to direct that the new trial be limited to the issue of damages, adhered to the determination conditionally setting aside the verdict. Appeal from order dated February 20, 1969 dismissed as academic. That order was superseded by the order of April 29, 1969 granting resettlement. Order dated April 29, 1969 modified, on the law and the facts, by striking from the resettled provisions thereof the figure "$10,000.00" and substituting therefor the figure "$12,500". As so modified, order affirmed insofar as appealed from. The time within which plaintiff may stipulate to reduction of the verdict is extended until 20 days after entry of the order hereon. Appellant is allowed a single bill of costs jointly against respondents appearing separately. The reduction of the verdict to which plaintiff was required to stipulate as a condition for denial of a new trial was excessive to the extent indicated herein. While it appears that Exhibits 3 and 5 for identification were competent as business entries, they were properly excluded because there was no proof connecting their contents with the subject accident. Mere competency as business records was not sufficient to require their acceptance into evidence ( Toll v. State of New York, 32 A.D.2d 47). Exhibit 6 for identification was not a competent business entry ( Goodkin v. Brooklyn Queens Tr. Corp., 241 App. Div. 737, affd. 265 N.Y. 638, and analyzed in 5 Bender's New York Evidence, § 374.03, p. 230, n. 18; Poses v. Travelers Ins. Co., Hartford, Conn., 245 App. Div. 304; Welz v. Commercial Travelers Mut. Acc. Assn. of America, 266 App. Div. 668). Munder, Acting P.J., Martuscello, Latham, Kleinfeld and Benjamin, JJ., concur.