Koester v. New York City Railway Co.

96 N.Y.S. 117

Opinion

SCOTT, P. J.

On a former appeal a judgment in favor of plaintiff was reversed, because in the opinion of this court the evidence preponderated in behalf of the defendant. 90 N. Y. Supp. 375. On the second trial, with a record subject to no legal objection, the jury have again found in plaintiff’s favor. On both trials the plaintiff’s evidence, if believed, would have justified the verdict. There is nothing to indicate that the jury were influenced by passion, prejudice, or partiality, and I do not think that we can justify a second reversal upon a pure question of fact. The verdict was, however, in my opinion excessive, and should be reduced.

The judgment will therefore be reversed, and a new trial granted, with costs to appellant to abide the event, unless the plaintiff will stipulate to reduce the judgment to $1,159.90, in which case the judgment, as reduced, will be affirmed, without costs of this appeal. All concur.