
    Charles B. Gumb, Resp’t, v. The Twenty-third Street R. Co., App’lt.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed March 4, 1890.)
    
    Verdict—Power of court to remit portion op.
    The court at special term has power to grant an order to remit a portion, of a verdict nunc pro tunc.
    
    Appeal from an order which denied defendant’s motion to-set aside the judgment herein as irregular a,nd granted plaintiff’s motion to remit one dollar of the verdict nunc pro tunc.
    
    Action brought to recover $5,000 damages for alleged negligence. It was first tried in 1885, and plaintiff had a verdict of $500. A new trial was granted by the court of appeals It was-tried again before Judge Dugro and a jury, and plaintiff again had a verdict for $500. He entered judgment three days later for $499 damages against the defendant’s protest, and without any application to, or authority from, the court. On the coming in of the verdict, defendant had moved for a new trial on the ground, among others, that the verdict was excessive, which motion was denied; and plaintiff had moved for and obtained an extra allowance of five per cent, on the verdict. Defendant moved the court-to vacate the judgment on the ground that it was unauthorized and not in accordance with the verdict. Plaintiff thereupon moved at special term for leave to remit one dollar, nunc pro tunc, as of the day before entry of judgment. Defendant’s motion to vacate-was denied and plaintiff’s motion to remit one dollar was granted-
    Appellant contends that the Code distinctly provides that on the rendition of a general verdict judgment must be entered in-conformity thereto, unless a different direction is given by the court; that in any view of the case the application to remit should have been made to the judge who tried the case or to the court at trial term, and not at special term; that assuming that a judge sitting at special term has power, after judgment, to remit a portion of the verdict, nunc pro tunc, that discretion was wrongly exercised here.
    
      H. B. Glossom, for pl’ff; Leslie W. Russell, for def’t.
   Per Curiam.

The court at special term had discretionary power to make the order appealed from.

The court last referred to in § 1189 of the Code of Civil Procedure is the trial court and the court at special term.

Mo such inference as is claimed by the appellant can fairly be-drawn from the fact of the appearance in the Code of §§ 8016 and 8176. These provisions were incorporated in the Code in order to make it matter of absolute right for a prevailing party to remit part of a verdict and to render an application to the court unnecessary. In other proper cases the application is addressed to the discretion of the court.

It does not appear that there was an improper exercise of discretion in granting the order. It should therefore be affirmed.

Sedgwick, Ch. J., and Dugro, J., concur.  