Kelmenson v. Metropolitan Opera Co.

Appellate Terms of the Supreme Court of New York

Kelmenson v. Metropolitan Opera Co.

152 N.Y.S. 1002

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 6, 1915

StatusPublished

Cited by1 cases

This text of 152 N.Y.S. 1002 (Kelmenson v. Metropolitan Opera Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelmenson v. Metropolitan Opera Co., 152 N.Y.S. 1002 (N.Y. Ct. App. 1915).

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Opinion

PER CURIAM.

The verdict of the jury in favor of plaintiff is supported by the evidence, and cannot be said to be against the law as set forth in the charge of the learned judge below, and so far as the same was not excepted to. In other words, it is within the theory of the case as tried. But the amount of the verdict, $400, is plainly excessive upon the same theory. The court charged the jury that plaintiff “cannot recover 'smart money’ * * * unless the defendant, as distinguished from the agents themselves, was responsible for the wantonness and maliciousness [of the force alleged to have been used to eject plaintiff from the place she occupied].” There is no testimony that defendant was responsible for these wanton or malicious acts of the ushers, even if such .were proved. For the actual injury to plaintiff, $100 would be liberal compensation. If plaintiff will stipulate that the amount of the judgment be reduced to that sum, with appropriate costs, the judgment may be modified to that effect, and, as modified, affirmed; otherwise, reversed, and a new trial ordered, with costs to appellant to abide the event.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event, unless the plaintiff will stipulate to reduce the amount of the recovery to the sum of $100, such stipulation to be served within six days after entry of the order and notice thereof, in which event the judgment, as so modified, is affirmed, without costs of this appeal to either party.

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PER CURIAM.

The verdict of the jury in favor of plaintiff is supported by the evidence, and cannot be said to be against the law as set forth in the charge of the learned judge below, and so far as the same was not excepted to. In other words, it is within the theory of the case as tried. But the amount of the verdict, $400, is plainly excessive upon the same theory. The court charged the jury that plaintiff “cannot recover 'smart money’ * * * unless the defendant, as distinguished from the agents themselves, was responsible for the wantonness and maliciousness [of the force alleged to have been used to eject plaintiff from the place she occupied].” There is no testimony that defendant was responsible for these wanton or malicious acts of the ushers, even if such .were proved. For the actual injury to plaintiff, $100 would be liberal compensation. If plaintiff will stipulate that the amount of the judgment be reduced to that sum, with appropriate costs, the judgment may be modified to that effect, and, as modified, affirmed; otherwise, reversed, and a new trial ordered, with costs to appellant to abide the event.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event, unless the plaintiff will stipulate to reduce the amount of the recovery to the sum of $100, such stipulation to be served within six days after entry of the order and notice thereof, in which event the judgment, as so modified, is affirmed, without costs of this appeal to either party.

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Bluebook (online)

152 N.Y.S. 1002, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelmenson-v-metropolitan-opera-co-nyappterm-1915.

Opinion

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