Guglielmo v. Church Engineering Corp. (234 A.D. 623, 1931)

Judgment and order affirmed, with costs. By its former decision this court refused to interfere with the exercise of discretion by the trial court in reducing the verdict. This did not mean that the amount to which the trial court reduced the verdict was the maximum of recovery upon a retrial. If that were so, the alternative provision for a new trial, the acceptance or rejection of which rested with the plaintiff, would be meaningless. A retrial has been had and a verdict larger than upon the first trial has been rendered. With this verdict the trial court refused to interfere, and we are unwilling to interfere with the exercise of its discretion. Lazansky, P. J., Hagarty, Carswell and Davis, JJ., concur; Kapper, J., dissents upon the ground that this court, by its former decision, affirming the order of the trial court reducing the verdict from $45,000 to $30,000, placed its stamp of approval upon that amount of damages in this case, and to that extent made it the law of the case; and the present verdict is, therefore, excessive, as a matter of law. Besides, we are this day (Cremeans v. Pennsylvania R. R. Co. ante, p. 623), affirming an order which reduced a verdict from $45,000 to $30,000 where in all substantial respects the facts are the same as here.