
    Albert Crumiell, Resp’t, v. Robert Hill, App’lt.
    
      (New York Court of Common Fleas, General Term,
    
    
      Filed February 6, 1888.)
    
    Excessive damages— General term has no power to reduce verdict.
    The general term cannot, on deciding the amount of damages found by a jury to be excessive, order the reduction of the verdict.
    
      J. E. Dennison, for app’lt; Jerroloman & Arowsmith, for resp’t.
   Per Curiam.

The question to be decided in this case is

this: Had the general term of the city court power, when they decided the amount of damages found by the jury to be excessive, to order the reduction of the verdict to nominal damages, or was it their duty to have ordered a new trial ? In Cassin v. Delany (38 N. Y., 178), the court of appeals denied the power of the general term to order a reduction of the verdict, in a case of malicious prosecution, as the alternative of a new trial. ^ T

^ T “ Excessiveness of damages,” says Chief Justice Hunt in that case, “is a well settled ground for reversing a judgment. When the court reach the conclusion that an error, in that respect, had been committed, it is their duty to reverse the judgment equally, as if fraud or corruption had been established, or incompetent or immaterial evidence had been introduced. There is no rule or provision of law by which judges at the general term are authorized to fix the amount of damages proper to be recovered by a pérson who has suffered from the malicious prosecution of another. Such a proceeding is in hostility to every principle of the common law, as well as to our own system of practice and pleading. If the court has erred in its decisions, or the jury has erred in its judgment, the matter must be referred to another jury.

Since the decisions of that case, however, the rule seems to have been changed; and in many cases of tort for injuries to persons the general- term has, on appeal from the order of the special term, made on motions to set aside the verdict for excessive damages, made a conditional order reversing the judgment and granting a new trial, unless the plaintiff would consent to reduce the damages to a specified sum, and affirming it for that amount if the plaintiff should consent to the reduction. This practice seems to have been approved of by the court of appeals in later decisions. In Whitehead v. Kennedy (69 N. Y., 462), the court says. “This seems to be a comparatively modern practice, and cases in this court have assumed that the general term had the power, on appeal in these cases, if the verdict is deemed excessive, to make the conditional order mentioned. We do not intend to disturb the authority of these decisions.”

We know of no practice of authority which goes to the extent of allowing the appellate court to determine disputed questions of fact and render final judgment upon such determination. To do this would not be within the appropriate functions of the appellate court, and would be an invasion of the province of the trial court.

We think the judgment should be reversed and a new trial ordered, with costs to abide the event.  