
    Kate M. Stemmerman, Respondent, v. Nassau Electric Railroad Company, Appellant.
    
      Reduction of a reduced'verdict by the Appellate Division.
    
    Where, on the trial of an action to recover damages for personal injuries, the court requires the plaintiff, as a condition of denying the defendant’s motion for a new trial, to reduce the damages awarded by the jury, the Appellate Division may, on an appeal to it by the defendant from the judgment entered for the reduced recovery, reduce it still further.
    Appeal by the defendant, the Nassau Electric 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 Kings on the 16th 'day of August, 1898, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 3d day of August, 1898, denying the defendant’s motion for a new trial made upon the minutes, a stipulation having been made in pursuance of the order of the court that the recovery should be reduced to $4,000.
    
      Henry Yonge [Clarence J. Shearn with him on the brief], for the appellant.
    
      S. S. Whitehouse, for the respondent.
   Goodrich, P. J.:

The action was brought to recover damages sustained by the plaintiff in a collision between a wagon in which she was riding and one of the cars of the defendant. The jury rendered a verdict for $8,000; a motion was made for a new trial and an order was entered granting the motion, unless the plaintiff stipulated to reduce 'the recovery to $4,000.. The plaintiff so stipulated and entered judgment for the reduced recovery. The defendant now appeals from the judgment and the order.

It is evident from the record that the learned trial justice exercised wisely and courageously the somewhat thankless duty which the law has imposed upon the justice presiding at the Trial Term,, where, by reason of opportunity to observe witnesses and the course of trial, discretion can be exercised far better than can be done by the Appellate Division on the record. We are clearly of opinion that the learned justice arrived at a just conclusion in reducing the amount of the recovery.

The defendant, however, contends that the judgment should be still further reduced. . It insists that the verdict of $8,000 was sa manifestly unjust and excessive that it furnishes irresistible evidence that the jury were so far carried away by prejudice and passion that they could not have impartially decided the question of negligence-in the case.

The defendant’s counsel, however, with a frankness which did him credit, stated on the argument of this appeal that the evidence was contradictory and of such a character as to justify a verdict for either party. This is confirmed by a reading of the record on appeal, and we cannot assume that because the jury erred in assessing the damage, they erred in their conclusion upon the general facts. Nor do we see how they could have arrived at any other result.

There is no doubt of the power of this court to reduce a modified •verdict. In De Puy v. Kann (32 App. Div. 638) the. jury had rendered a verdict for $2,500 in an action for false arrest. The ■trial justice reduced the amount to $1,500. In our judgment the amount of the recovery in that case was still excessive, and, with a good deal of hesitation, as the trial justice had exercised his discretion and because we deemed it an extreme recovery, we concluded to reduce it to $.750. I know of no. other case where such a course has been taken by any court.

It became important, therefore, to see whether, as argued by the .defendant’s counsel, the circumstances required a further reduction •of the recovery in the case at bar. After a careful reading of. all the .testimony upon the subject, and the opinion rendered- by the trial justice, we are of opinion that there should be no further modification of the verdict. .

The judgment and order should be affirmed.

All concurred in result, except Hatch, "J"., absent.

.Judgment and order unanimously affirmed, with costs.  