Wappus v. Donelly

Appellate Terms of the Supreme Court of New York

Wappus v. Donelly

91 N.Y.S. 381

Appellate Terms of the Supreme Court of New York·Decided December 23, 1904·Published

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.

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

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91 N.Y.S. 381 (Wappus v. Donelly) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.