Opinion
June 29, 1967
Appeal from the Erie Trial Term.
Present — Williams, P.J., Goldman, Henry, Del Vecchio and Marsh, JJ.
Order insofar as appealed from unanimously modified on the law and facts to the extent of ordering a new trial solely on the issue of damages, and as modified affirmed, without costs. Memorandum: The trial court properly set aside the $27,500 verdict as excessive but its granting of a new trial on the issue of liability in addition to the issue of damages was neither necessary nor required in the interests of justice. The questions of negligence and freedom from contributory negligence were fully and fairly tried. They were properly submitted to the jury and the verdict on the issue of liability is sufficiently supported by the evidence. Under these circumstances the interests of justice will be best served by the direction of a retrial solely of the damage issue. ( Mercado v. City of New York, 25 A.D.2d 75; CPLR 4404; 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 4404.34.)