Opinion
July Term, 1903.
Hector M. Hitchings, for the appellant.
Eugene Frayer, for the respondent.
The learned justice presiding at the trial of this action has granted a motion made by the defendant, under the provisions of section 999 of the Code of Civil Procedure, setting aside the verdict of the jury and granting a new trial unless the plaintiff should stipulate to accept the sum of $75 in place of $400, which the jury found. The action was brought for conversion and the defendant offered judgment for $100, which the plaintiff declined to accept. This appeal brings up the question of the authority of the trial court to make this conditional order and, incidentally, the question of costs.
From an examination of the evidence in the case we are persuaded that the learned court has not erred in granting a new trial. Section 999 of the Code of Civil Procedure provides that the "judge presiding at a trial by a jury may, in his discretion, entertain a motion, made upon his minutes, at the same term, to set aside the verdict," etc. This evidently contemplated a judicial discretion, an abuse of which might be corrected on appeal, and yet it is peculiarly a discretion vested in the trial judge, and it ought not to be interfered with except in a case where the ends of justice imperatively demand action. ( Lund v. Spencer, 42 App. Div. 543.) In this case there was evidence to support the verdict up to the amount of seventy-five dollars, and there was some testimony from which an inference might be drawn in support of a larger amount. We find no authority in this State which holds that in such a case the trial justice, having the power absolutely to set the verdict aside and grant a new trial, may not name conditions upon which the valid portion of the judgment may be sustained, provided the plaintiff is willing to accept the terms. In Lawrence v. Church ( 128 N.Y. 324) the verdict for the plaintiffs was reversed by the General Term unless the plaintiffs would consent that a certain amount should be deducted from the same, "without prejudice to a future action to recover" the amount deducted. Commenting upon this state of facts the court say: "If the General Term did not desire to grant a new trial unconditionally, the alternative should have been a modification of the judgment by the deduction of the amount regarded as erroneous, without any privilege of again suing for the same. Such a modification, when assented to by the plaintiffs and resulting in the affirmance of the judgment as modified would, upon the facts in this case, have operated as an abandonment by plaintiffs of the amount deducted. If the plaintiffs were not satisfied with such an affirmance, they could refuse to avail themselves of the privilege offered, and go back for a new trial upon the whole issues involved in the case." This is, we think, fairly the doctrine of Whitehead v. Kennedy ( 69 N.Y. 462) when read in full, and we find nothing to suggest that this rule is confined to negligence cases. (See the Whitehead Case, supra, 468, and authorities cited; also, Van Beuren v. Wotherspoon, 164 N.Y. 368, 376, 377, and authorities there cited.) The doctrine is well established that the Appellate Division cannot dispose of a jury case on the reversal of a judgment; it may set the verdict aside, but it must give the defeated party a new opportunity to go to the jury ( McDonald v. Metropolitan Street R. Co., 167 N.Y. 66, 70), and that is the power confided to the trial justice, but there is no objection to his permitting the plaintiff to elect, where there are particular items in the case which are supported by the evidence, between a new trial and a reduction of the verdict. The latter is a favor extended to the plaintiff, and affords no ground for complaint. The only question to be determined in respect to such an order is whether the discretionary power has been so far abused as to warrant the conclusion that injustice may result if a new trial is had. If not, then any concessions which the order may make to the plaintiff can give the latter no rights upon appeal. He refuses to accept the terms suggested in making the appeal, and the order is then in effect one setting aside the verdict unconditionally, and as such it must be considered here.
The order should, we think, be modified, imposing the costs of the trial upon the defendant. The error in this case is the error of the jury, and under such circumstances this court is committed to the practice of requiring the party asking the favor to pay the costs of the trial as a condition of making the grant. The order should be modified as in the case of Helgers v. Staten Island Midland R.R. Co. ( 69 App. Div. 570), and as so modified affirmed.
GOODRICH, P.J., BARTLETT, HIRSCHBERG and JENKS, JJ., concurred.
Order modified by imposing the costs of the trial upon the defendant, and as modified affirmed, without costs.