Opinion
July 2, 1964
Judgment entered on November 15, 1963 in favor of the plaintiff after a jury trial in the sum of $1,557, unanimously reversed, on the law and on the facts and a new trial granted, without costs, unless the plaintiff consents to accept as damages from the defendant, D Z Foods, Inc., the sum of $250 and from the defendant, Albert Blume, the sum of $1,000 inclusive of the sum of $250 allowed as damages against the corporation in which event the judgment is modified to that extent and as so modified is otherwise affirmed, without costs. After having a few drinks at a bar the plaintiff entered defendant corporation's restaurant and was waited upon by the defendant Blume who was a counterman in the restaurant. The plaintiff requested some sugar for his coffee and he and the defendant Blume became involved in a dispute. Plaintiff arose from his seat at the counter and apparently was going to leave the restaurant without paying his check. The plaintiff claims that, at that point, the defendant Blume reached across the counter and hit him on the side of his head knocking him to the floor. Defendant Blume claims that the plaintiff slipped and fell and struck his head during the fall. Although there is support for the jury's finding that the defendant corporation is responsible for its employee's acts and thus liable for compensatory damages, it has not itself acted willfully or maliciously or in any other manner as would justify holding it liable for punitive damages. In view of the slight injury sustained by the plaintiff the verdicts of the jury are excessive and a new trial should be held unless the plaintiff consents to a reduction of the verdicts as hereinabove provided. Settle order on notice.
Concur — Breitel, J.P., Valente, Stevens, Steuer and Staley, JJ.