Katz v. Brooklyn Heights Railroad

35 Misc. 302, 71 N.Y.S. 744

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1901
• Status: Published

Opinion

Per Curiam.

We have concluded not to interfere with the order opening defendant’s default. The disposition of such matters rests so largely within the discretion of the trial justice that his discretion will not he disturbed, save in case of most manifest injustice. The order is affirmed, with ten dollars costs.

The second trial was submitted to the learned justice for decision, by consent, the jury having failed to agree. He ordered judgment for plaintiff in the sum of sixty-five dollars. This was the reasonable value of the services of the plaintiff’s physician, as testified to bn the trial. Having thus succeeded upon the issue of negligence, the plaintiff is without any compensation for his own injuries, being only repaid the reasonable value of his doctor’s services. This is an injustice and cannot be tolerated.

Judgment reversed and new trial ordered, with costs.

Present: Scott, P. J., Beach and Fitzgerald, JJ.