
    Edward H. Swan, Jr., Respondent, v. The Long Island Railroad Company, Appellant.
    
      Second excessive damages — judgment set aside.
    
    Upon tie trial of an action the jury rendered a verdict for the plaintiff for §12,500 damages, the judgment entered upon which was reversed upon appeal as excessive. Upon a retrial the jury rendered a verdict for §20,538.07, upon which judgment was rendered in favor of the plaintiff.
    Upon an appeal by the defendant from this judgment it was not claimed by the respondent that the case on the second trial in any of its essential features was stronger in favor of the plaintiff upon the question of damages than it was on the first trial.
    
      Held, that consistency required that the judgment should not be affirmed.
    Appeal by the defendant, Tlie Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, ■entered in the office of the clerk of the county of New York on the 26th day of December, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an ■order entered in said clerk’s office on the 28th day of December, 1894, denying the defendant’s motion for a new trial.
    
      W. G. Beecher, for the appellant.
    
      Wilhebnus Mynderse, for the respondent.
   Per Curiam :

Upon this last trial plaintiff recovered a verdict for $20,538.07. On the former trial the jury awarded the plaintiff $12,500, and this ■court decided that that was excessive. (Swan v. L. I. R. R. Co., 61 N. Y. St. Repr. 28; 79 Hun, 612.) It is not claimed by the respondent that the present case in any of its essential features is stronger in favor of the plaintiff upon the question of damages than that presented by the former record on appeal, and while an examination of the record confirms the claim, by reason of the time that has elapsed, that the injuries were serious, we regard the case as not quite so strong for plaintiff as upon the first trial. Upon the second trial no evidence was given of doctors’ bills, nor was there anything to show how plaintiff’s injuries had affected his ability to get about and enjoy himself, upon both of which points evidence was presented at the former trial. In this state of the record consistency requires that the judgment, which upon similar evidence is almost double the one that was set aside as excessive, should not be affirmed.

Unless, therefore, the plaintiff will stipulate to reduce the verdict to $10,000, it should be reversed and a new trial ordered, with costs, to abide the event.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulate to reduce the verdict to $10,000, in which event judgment as so reduced affirmed, without costs.  