Wallace v. New York City Railway Co.

92 N.Y.S. 766

Opinions

SCOTT, J.

The defendant in ■ this case admitted its liability, and the only question to be determined was as to the amount of damages. The justice erroneously admitted evidence tending to show that certain injuries suffered by plaintiff were permanent, although that fact was not pleaded. We are bound to assume that the evidence thus erroneously admitted enhanced the verdict to some extent, although, of course, we cannot tell precisely by how much.

We think that the judgment must 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 $226.50, in which case the judgment as modified will be affirmed, without costs. If plaintiff is willing to accept a judgment for damages as thus reduced, the defendant should be satisfied to be charged no more for its admitted liability.