Wappus v. Donelly , 91 N.Y.S. 381 ( 1904 )

FREEDMAN, P. J.

Most of plaintiff’s evidence .bearing upon the question of damages was incompetent, and upon the remainder, which was competent and relevant, the trial justice might reasonably have awarded a somewhat larger sum than $6, but we are not prepared to say that his findings present reversible error. On the other hand, the plaintiff should not be subjected to the costs of the appeal if we refrain from granting a new trial as matter of favor.

Under all the circumstances, the judgment should be affirmed upon condition that the respondent stipulates to waive the costs of the appeal; and, if he should decliné to comply with this condition, the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

GILDERSEEEVE, J., concurs.