Terpening v. Aubrey

258 A.D. 857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1939
• Status: Published

Opinion

Judgment so far as it relates to the recovery of $875, with interest and costs, and order granting a new trial in part and denying a new trial in part affirmed, without costs of this appeal to either party, and time to file stipulation as provided in the order enlarged to include twenty days after service of a copy of the order. Memorandum: The determinations appealed from were made upon motions presenting fair questions of fact and the decision of the trial justice thereon did not in our opinion pass the limits of the authority intrusted to him in these matters. All concur, except Dowling, J., who dissents and votes for a reversal of that part of the order setting aside the verdict and judgment in part and for the restoration of the verdict and of the judgment as originally entered on the ground that in his opinion there was an abuse of discretion. (The judgment is for plaintiff in an automobile negligence action; the order grants a new trial unless plaintiff stipulates to reduce the verdict on the first cause of action, and denies a motion for a new trial as to the second cause of action.) Present ■—■ Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.