
    Irving Dembitz, an Infant, by Leopold Dembitz, His Guardian ad Litem, Appellant, v. Orange County Traction Company, Respondent.
    (No. 2.)
    Second Department,
    December 28, 1911.
    Mew trial — conditions — option to reduce verdict — appeal, without exercising option — order extending time, when denied — election — appeal by defendant.
    Where the trial court made an order setting aside a verdict and granting a new trial unless the plaintiff within twenty days stipulated to reduce the verdict and the plaintiff appeals from the order without making the stipulation, he is not, after the order has been affirmed on appeal, entitled to an order extending the time within which he may stipulate to reduce the verdict. Section 783 of the Code of Civil Procedure', providing for relief after the time tó take proceedings in an action has expired, has no application under the circumstances.
    The option given to-the plaintiff to accept a smaller sum than that fixed by the jury in order to avoid anew trial is in the nature of a favor. He is put. to an election and must either agree to reduce the judgment or to - submit to a new trial:
    A right once waived with full knowledge- of the facts cannot be reasserted, which rule prevails in the matter of election.
    Hnder the circumstances aforesaid the plaintiff is not entitled to an extension' of time within which to reduce his' judgment, although the defendant also appealed from the order, if it appears that the time to reduce the judgment had expired before the defendant’s appeal.
    Appeal by the plaintiff, Irving Dembitz, from an order of the Supreme'Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 19th day of September, 1911, denying the plaintiff’s motion for an extension of the time within which to stipulate for the reduction of a verdict.
    
      Thomas J. O’Neill, for the appellant.
    
      George E. Miner [ William F. Cassedy and C. L. Waring with him on the brief], for the respondent.
   Woodward, J.:

The. plaintiff, on the trial of the above-entitled action, had a verdict for $15,000 damages for the- loss of. a. leg, caused by the defendant’s negligence. On' defendant’s motion the learned trial court made an order providing that the verdict should be set aside and a new trial granted unless the plaintiff, within twenty days after the service of the order, stipulated to reduce the verdict to $9,000. The plaintiff did not make the stipulation,' hut appealed from the order. The defendant likewise appealed. This court affirmed the order on both appeals, without opinion (145 App. Div. 931), thus holding that the order was properly made reducing the verdict or granting the defendant’s motion to set aside the verdict. Thereupon the plaintiff moved this court, at Special Term, for an order extending the time within which the plaintiff might stipulate to reduce the verdict, and from the order. denying this motion the plaintiff appeals to this court, urging that under the provisions of section 183 of the Code of Civil Procedure it was the duty of the court to grant this motion.

We are of the opinion that section 183 of the Code of Civil Procedure does not apply to a state of facts such as is now before this court. An order setting aside the verdict and granting a new trial is authorized by section 999 of the Code of Civil Procedure. This is not a mere discretion vested in the court; the discretion is given to the court to “entertain a motion, made upon his minutes, at the same term, to set aside the verdict or a direction dismissing the complaint and grant a new trial upon exceptions; or because the verdict is for excessive or insufficient damages, or otherwise contrary to the evidence, or contrary to law.” This is merely a .short way of reaching the question of the right to a new trial, and the discretion relates to the power of the “judge, presiding at a trial by a jury,” to entertain the motion. If he does entertain the motion, his determination upon the questions presented is not one of discretion, but of law, and this determination may he reviewed by this court the same as any other question affecting the substantial rights of the party. Having the power to set aside a verdict for excessive damages, it has long been the practice for the court to indicate a sum which the judge presiding at the trial believes to be adequate damages as established by the evidence, and to give the. plaintiff the option of accepting the verdict, modified by a reduction to a given sum, or to submit to the entry of the order granting the motion to set aside the verdict and for a new trial, with the right, of course, to appeal from such order. (L’Amoureux v. Erie R. R. Co., 62 App. Div. 505.) This option to accept a. smaller sum than that fixed by the jury is in the nature of a favor to the plaintiff (Lawrence v. Wilson, 86 App. Div. 472, 474); he is put to an election, which in a legal sense is the choice of one of two rights or things, to each one of which the party choosing has-an equal right, but both of which he cannot have. (1 Bouvier Law Dict. [Rawle’s Rev.] 646 et seq.; L’Amoureux v. Erie R. R. Co., supra; Lawrence v. Wilson, supra.) In the latter case, where the plaintiff was. given - such an option, this court say: “The latter is a favor extended to the plaintiff, and affords no ground for complaint. The only question to be determined in respect to ' such an order is whether the discretionary power has been so far abused as to warrant the conclusion that injustice may result if a.new trial is had. If not, then any concessions which the order may make to the plaintiff can give the latter no rights upon appeal. He refuses to accept the terms suggested in making the appeal, and the order is then in effect one setting aside the verdict unconditionally, and as such it must be considered here.” In the case at bar the order setting aside the verdict of the jury and granting' a new trial has been affirmed, and whether we view the question from the standpoint of a waiver of a material right, or as an election to decline the condition imposed by the court, the rule of law is the same.. A right once waived, with full knowledge of the facts, cannot be reasserted. (Mayor, etc., v. M. R. Co., 143 N. Y. 1, 26, and authorities there cited.) A like rule prevails in matters of election. (Conrow v. Little, 115 N. Y. 387, 394; Terry v. Munger, 121 id. 161, 165.)

While it is true, of course, that the plaintiff does not technically ask for this favor, yet it. is extended to him by the court in a case where the court is authorized to set aside the verdict as a whole, and. we think it is within the rule laid down in Brownell v. Ruckman (85 N. Y. 648, and authority there cited) “ that one who asks an order which the court may, in its discretion, grant or refuse, must, if he obtains it, submit to the conditions which the court impose. He need not accept - it, and he then stands as if the favor was denied.” The plaintiff, under the ruling of the trial court, had an absolute right to have defendant’s motion denied during a period of twenty days. When he neglected to act upon that right during the time fixed, the right of the defendant to enter the order granting the motion for a new trial became fixed; certainly so when the plaintiff elected to refuse the benefits of the order and to appeal from its provisions cutting down the verdict. The decision of that appeal was conclusive upon the propriety of the order granting a new trial, and á new trial having been ordered, upon the plaintiff’s election to permit such new trial rather than submit to a reduction of the verdict, this court is powerless to relieve from the consequences of that election. The- plaintiff certainly could not be permitted to accept the benefits of an order and then appeal from such order. (Weichsel v. Spear, 47 N. Y. Super. Ct. 223; affd., without opinion, 90 N. Y. 651.) And if this could not be done in the first instance, it clearly cannot be done in effect after the plaintiff has taken the chances of retaining the verdict by appealing.

This conclusion might, upon a casual reading, appear to be out of harmony with Cullen v. Uplegrove & Brother (101 App. Div. 147), but we are of the opinion that it is clearly distinguishable. In that case the court had granted defendant’s motion to set aside the verdict and for a new trial unless the plaintiff should stipulate within twenty days to accept a reduction. Plaintiff made an application at Special Term for an order staying all proceedings therein, “save to appeal from said order,” and directing “that the time within which the plaintiff may stipulate to reduce said verdict be and the same is hereby extended to and including twenty days from and after the hearing and determination of the appeal from said order,” and it was from this order staying proceedings and extending the time in which the plaintiff might enter the stipulation that the appeal was ■ taken. In that case the order extending the time was applied for at a time when the plaintiff still had the right to make the stipulation; if the court had refused to grant the order of extension, the plaintiff might have availed himself of the option to make the stipulation before the expiration of the time, while if the order had been reversed on appeal, the plaintiff’s time would have expired and the defendant might have entered an order setting aside the verdict, even though its appeal, which had been taken from the order denying its motion conditionally, had been unsuccessful. The defendant in that case had, by its appeal, refused to accept the advantage of the conditional order; it asserted the right, by its appeal, to have an unconditional order setting'aside the verdict and granting a new trial. The defendant thus waived its right to any advantage from the order, and this court very properly refused, to reverse , an order staying the proceeding,' when to do so would operate to deprive'the plaintiff of the right to accept' the conditions of the order, where- he had proceeded regularly in-his application for d stay of proceedings, In disposing of the question this court said: It will work'no hardship to the defendants -if the plaintiff retains his right to stipulate for a reduction until after the determination of the cross-appeals, while the defendants’’ Contention that they may properly accept the obvious benefit of that part of the order which requires the plaintiff, to stipulate, and at the same time prosecute an appeal from the remainder of the order, suggests, an" anomaly which is, made more striking by their argument against the plaintiff’s rights in the matter. We think the order was granted by the Special Term in fhe proper exercise of its discretion, and should not be-disturbed.” . This was obviously á cáse depending upon its ownpeculiar Circumstances, and cannot be regarded as an authority for the proposition that after a party has deliberately made an election and ¡¡lias permitted his time to ■expire without taking action, he can,, aifter the appeals have been determined, be restored to the rights which he has waived.

The order here appealed' from merely refused to extend a privilege which had once been waived, and while- it might be said that the defendant refused to abide by the order by appealing from .the same, it appears that the time had expired before the defendant’s appeal was taken; the defendant already had the right to enter an order setting aside the verdiet, and the fact that it may have appealed from the order where no appeal was necessary, does not operate to give the plaintiff any new rights.

The order appealed from should be. affirmed:

Jenks, P. J., Thomas, Carr and Rich, JJ., concurred,

Order affirmed, with ten dollars costs and disbursements.  