Wappus v. Donelly

Appellate Terms of the Supreme Court of New York

Wappus v. Donelly

91 N.Y.S. 381

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 23, 1904

StatusPublished

This text of 91 N.Y.S. 381 (Wappus v. Donelly) 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

Wappus v. Donelly, 91 N.Y.S. 381 (N.Y. Ct. App. 1904).

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Opinions

FREEDMAN, P. J.

Most of plaintiff’s evidence .bearing upon the question of damages was incompetent, and upon the remainder, which was competent and relevant, the trial justice might reasonably have awarded a somewhat larger sum than $6, but we are not prepared to say that his findings present reversible error. On the other hand, the plaintiff should not be subjected to the costs of the appeal if we refrain from granting a new trial as matter of favor.

Under all the circumstances, the judgment should be affirmed upon condition that the respondent stipulates to waive the costs of the appeal; and, if he should decliné to comply with this condition, the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

GILDERSEEEVE, J., concurs.

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FREEDMAN, P. J.

Most of plaintiff’s evidence .bearing upon the question of damages was incompetent, and upon the remainder, which was competent and relevant, the trial justice might reasonably have awarded a somewhat larger sum than $6, but we are not prepared to say that his findings present reversible error. On the other hand, the plaintiff should not be subjected to the costs of the appeal if we refrain from granting a new trial as matter of favor.

Under all the circumstances, the judgment should be affirmed upon condition that the respondent stipulates to waive the costs of the appeal; and, if he should decliné to comply with this condition, the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

GILDERSEEEVE, J., concurs.

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Bluebook (online)

91 N.Y.S. 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wappus-v-donelly-nyappterm-1904.