Clancy v. Toal

254 A.D. 166, 4 N.Y.S.2d 385, 1938 N.Y. App. Div. LEXIS 6369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1938
• Status: Published

Opinion

Per Curiam.

The sole issues litigated on this appeal relate to the quantum of damages. While there were errors in the court’s charge it is clear from the entire evidence and from the size of the verdict in favor of the infant plaintiff, John Clancy, that the jury were not influenced thereby, and accordingly the judgment in favor of the infant, John Clancy, should be affirmed.

The judgment, however, in so far as it is in favor of the plaintiff Anna Clancy should be reversed, the action severed and a new trial ordered as to said plaintiff, with costs to the appellant to abide the event, unless said plaintiff stipulates to reduce the judgment as entered to the sum of $1,000 plus the costs as taxed, in which event the judgment in favor of the plaintiff Anna Clancy as so modified should be affirmed, without costs on this appeal.

Present — O’Malley, Townley, Dore, Cohn and Callahan, JJ.

Judgment in favor of the infant, John Clancy, unanimously affirmed. Judgment, in so far as it is in favor of the plaintiff Anna Clancy, unanimously reversed, the action severed and a new trial ordered as to said plaintiff, with costs to the appellant to abide the event, unless said plaintiff stipulates to reduce the judgment as entered to the sum of $1,000, plus the costs as taxed, in which event the judgment in favor of the plaintiff Anna Clancy as so modified is affirmed, without costs on this appeal. Settle order on notice.