Haas v. Brown

282 A.D. 916, 125 N.Y.S.2d 338, 1953 N.Y. App. Div. LEXIS 5408

Opinion

Judgment insofar as appealed from and order reversed on the law and facts, with costs, and verdict of the jury reinstated. Memorandum: The court having submitted the issue of the extent of damages to the jury without objection, the sufficiency of the complaint in that regard could not be tested upon a motion for a new trial. The jury having returned a verdict in the amount testified to by the mechanic who repaired plaintiff’s car, it was error for the court to disregard this sum and reduce the verdict to six cents. We also feel that the court was in error in refusing to grant the motion to amend the complaint to conform to the proof which was admitted without objection. All concur. (Appeal from part of a judgment for plaintiff for $267, which verdict was reduced to six cents by an order of the court, in an automobile negligence action.) Present — MeCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.