
    SCOTT v. SUN PRINTING & PUB. ASS’N.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    Setting Aside Verdict—Excessive Damages.
    It is error to set aside a verdict as excessive unless the amount is such as to show misconduct and impropriety on the part.of the jury.
    Appeal from circuit court.
    Action by S. Walter Scott against the Sun Printing and Publishing Association. From an order setting aside a verdict as excessive, and granting a new trial, unless, within 30 days after the service of the order, plaintiff stipulated to reduce the verdict to the sum of $4,000, plaintiff appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM, J.
    Gibson & Van Kirk, (C. C. Van Kirk, of counsel,) for appellant.
    F. & C. A. H. Bartlett, (Franklin Bartlett, of counsel,) for respondent.
   MAYHAM, P. J.

The only question that can be properly considered on this appeal is as to whether this verdict should be set aside or modified as excessive. That seems to be conceded by counsel on both sides, and is the logical result of the order appealed from. If the learned judge had felt called upon to interfere with the verdict for errors and exceptions on the trial, he would have set aside the verdict in toto, as he would have had an undoubted right to do for such errors. . Allowing the verdict to stand, reduced in amount, is equivalent to holding that the plaintiff is entitled, upon the case proved, to recover, but that 'the verdict was excessive in amount. Was the verdict, within the rules of law governing such questions, excessive, to such a degree as to authorize the court, for that reason, to set it aside or reduce it? In actions for torts, when the damages are necessarily unliquidated, the judgment of the jury, and not that of the court, must fix the amount of recovery, subject only to the qualification that when the damages found by the jury are flagrantly outrageous and extravagant, so as to evince intemperate passion, partiality, or corruption on the part of the jury, the court may interfere by setting aside the verdict altogether, or by directing the plaintiff to stipulate to take a less sum as a condition of retaining his recovery. We are not aware that this rule has ever been departed from in this state, and it has the sanction of the federal courts, and the highest judicial authority in England. This rule has been recently reaffirmed in this court. In Stephens v. Knitting Co., (Sup.) 20 N. Y. Supp. 916, Herrick, J., says:

- “In actions for damages for torts, it is the well-established law of this state that verdicts of jurors will not be set aside for excessiveness unless the amount is so great as manifestly to show that the jury must have been actuated by passion, partiality, prejudice, or corruption;” citing Coleman v. Southwick, 9 Johns. 45; Gale v. Railroad Co., 13 Hun, 1; Minick v. City of Troy, 19 Hun, 253; Gale v. Railroad Co., 53 How. Pr. 395; Whiteman v. Leslie, 54 How. Pr. 495; Collins v. Railroad Co., 12 Barb. 492.

And he adds:

“The case is one of that kind where, if the plaintiff is entitled to recover at all, it is peculiarly the province of the jury to say how much. * * * The question of damages, in such case, is one which it is the special duty of the jury to determine; and, while the court may reduce a verdict, it seems to me that, if the court thinks the verdict is so large as to indicate that the jury was actuated by improper motives, it is better to set the verdict entirely aside, and have another jury pass upon it, rather than determine itself what the verdict shall be, and thus assume and exercise the functions of a jury.”

While the policy of the reduction of the amount of a verdict by the court is, we think, properly questioned by the learned judge, its power to do so is conceded, and seems to be established on authority. Holmes v. Jones, 121 N. Y. 461, 24 N. E. 701. Yet the exercise of the power to interfere with a verdict on the ground that it is excessive is confined to cases of manifest misconduct or impropriety on the party of the jury, as evidenced by the excessive and unreasonable amount of the verdict. This rule was adopted in this state as early as the case of Tillotson v. Cheetham, 2 Johns. 63, when the court said:

“We cannot interfere on account of the damages. A case must be very gross, and the recovery enormous, to justify our interposition on a mere question of damages, in an action of slander.”

This language was quoted with approbation in Root v. King, 7 Cow. 636, when the court refused to set aside or interfere with a verdict in an action for libel on the ground that it was excessive. In McConnell v. Hampton, 12 Johns. 236, the court say:

“To justify the granting of a new trial, the damages must be flagrantly outrageous and extravagant, evincing intemperance, passion, partiality, or corruption on the part of the jury.”

Tested by these rules, we cannot concur in the opinion of the learned trial judge in setting aside or reducing this verdict. The jury was required to assess these damages, and while this court or .the trial court might, as an original question, have fixed a lower measure of damages, in view of the gravity of this charge we cannot say that the jury, in arriving at and pronouncing their verdict, have evidenced by it that they were influenced by any of the improper motives which would authorize this court, within the rules of law above referred to, to set aside this verdict. The order of the special term must be reversed, with $10 costs and printing disbursements.  