Burdick
v.
Murray

Appellate Division of the Supreme Court of New York, Fourth DepartmentJun 19, 1958
6 A.D.2d 855 (N.Y. App. Div. 1958)

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June 19, 1958

Appeal from the Oneida Trial Term.

Present — McCurn, P.J., Kimball, Williams, Goldman and Halpern, JJ.


Order modified by striking therefrom the words: "unless both the plaintiff and the defendants stipulate and agree, on or before March 12, 1957, that the plaintiff recover $6,000 as damages, in which event the motion is denied" and by substituting in place thereof, following the word "granted" the words: "on the ground of inadequacy.", and as so modified the order is affirmed, without costs of this appeal to any party. Memorandum: The order appealed from is unusual in that it grants the plaintiff's motion to set aside the verdict on the ground of inadequacy "unless both plaintiff and defendants stipulate and agree, on or before March 12, 1957, that the plaintiff recover $6,000 as damages, in which event the motion is denied." A trial justice may, of course, set aside a verdict on the ground of inadequacy and attach a condition that a new trial be had unless the defendant stipulate that it be increased to an amount specified by the trial justice. In this case the verdict of the jury was $3,000, and inasmuch as the defendant has not stipulated to increase it to $6,000 but has appealed from the order, the language which we have stricken from the order may be regarded as surplusage. Upon the record and upon a completely independent evaluation of the damages, we find that the verdict was inadequate and we affirm the order, as modified. All concur.